Why the Police in Michael Premo's Occupy Wall Street Trial Are Unlikely To Face Perjury Charges
Many of the readers who commented on last week's story about Michael Premo, the Occupy Wall Street protester who beat his criminal charges last week thanks to video evidence, wanted to know: Would the police officer whose testimony was contradicted by the video face any consequences? Would he be charged with perjury?
Jon Gerberg via Vimeo This officer may be pointing a video-camera at the scene of Michael Premo's arrest, but police say they didn't shoot anything that night.
The short answer is: Don't hold your breath.
But that's not to say that a closer look at Premo's trial doesn't reinforce the impression that the police testimony against him looks a lot like perjury.
In the initial complaint, Premo's arresting officer, Ron Vincent, described a version of events recounted to him by a second officer -- the one who actually handled Premo's physical arrest -- who he referred to as the "informant:"
"When informant was attempting to place the defendant under arrest defendant twisted defendant's body, refused to place defendant's hands behind defendant's back, and pushed informant with defendant's hands, causing deponent [sic] to fall.... Defendant's above described conduct caused informant to suffer a fractured wrist and substantial pain."
(Bizarrely, the initial complaint also alleged that Premo had interfered with police "by means including releasing and failing to control an animal under circumstances evincing the actor's intent that the animal obstruct the lawful activity of such peace officer," a claim so completely off-kilter that we're guessing it resulted from an errant keystroke in the cut-and-paste language generator used to phrase police accounts in terms most conducive to conviction.)
The problem with that initial complaint, Premo's lawyers argued in a motion, was that it failed to state underlying conduct -- that is, it charged Premo with resisting arrest and second-degree assault while resisting arrest, but didn't have any explanation for while he was being arrested in the first place. It seemed Premo had been arrested for resisting arrest. So prosecutors came back with "superceding information," effectively a second complaint.
This one featured an account from Sergeant Richard Jones, the "informant," who cuffed Premo before handing him off to Vincent. In this version, Jones says that Premo was "obstructing vehicular traffic by walking in the street" at the corner of 7th Avenue and 29th Street -- a problematic claim, given that police had already shut off both ends of the street with orange netting and there was no traffic in the street.
Otherwise Jones sticks to the initial narrative, though he walks back the claims of his broken wrist:
"When deponent was attempting to place defendant under arrest, defendant twisted defendant's body, refused to place defendant's hands behind defendant's back, and pushed deponent with defendant's hands and body, causing deponent to fall twice and causing deponent to suffer a sprained right hand and substantial pain."
Both Officer Vincent and Sgt. Jones signed the boilerplate form at the bottom their statements, which reads False statements made herein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law."
When Jones was called into court and sworn in to give his version of events in Premo's criminal case, he offered a more detailed picture. Jones first testified in a pre-trial hearing the day before the trial started, then took the stand to say much the same thing on the second day of the trial. You can read the full transcript of Jones's testimony below, but the back and forth between him and the lawyer make for a complicating read. A more concise version of Jones's story can be found in the findings of fact Judge Robert Mandelbaum articulated after listening to Jones's testimony, which read in part:
"The defendant successfully pushed his way through the measure by causing it to give way on the bottom and slipping out underneath it so as to remove himself from the detention area. In coming out, he bumped into a uniformed lieutenant, Lieutenant Welsh, who attempted to grab him, and the defendant and lieutenant went down on to the ground.
Sergeant Jones, having observed all of that, responded in an attempt to assist the lieutenant. The defendant refused to be detained and continued to attempt to try to run westbound down 29th Street. Sergeant Jones fell down on the defendant, as a result of the defendant's actions, and the defendant continued to flail and stiffen his arms, and the defendant got back to his feet. The sergeant told him to stop resisting, but the flailing and stiffing of the arms continued, such that Sergeant Jones again fell with the defendant, and finally three or four police officers were able to subdue the defendant and place him under arrest."
Specifically, Jones testified that Premo went under the mesh but "he didn't go on the ground." Rather, "he pushed his way, like you're on a line for football," before knocking over Lt. Welsh before struggling with three or four police officers and falling over twice more.
But as the jury saw, video of Premo's arrest shot by Demcoracy Now freelancer Jon Gerberg contradicted key points of Jones's sworn testimony. Lieutenant Welsh is nowhere to be seen in the video, nor is any other white-shirted senior officer. Premo is quite clearly crawling on the ground to get out of the scrum, doesn't knock anybody over, and doesn't appear to resist arrest at all.
So will Sgt. Jones face perjury charges for repeatedly swearing to statements that could have landed Premo in jail for a year of his life?
When the Voice asked the Manhattan District Attorney's office, their response was "Decline comment."
Defense attorneys and advocates of police reform certainly aren't overly hopeful.
"Officers are very rarely if ever investigated or prosecuted for the kind of "testilying" that they do, in part because the whole prosecution machine depends on testilying," said Gideon Oliver, the former president of the NYC National Lawyers Guild, who has represented many defendants in street protest arrests.
Oliver recalls working on the defense of Dennis Kyne, who was accused of inciting a riot and resisting arrest during the 2004 Republican National Convention. Kine's case was dismissed in the middle of his trial when a new video surfaced plainly contradicting the testimony of a police officer.
But while contemporary news accounts of the Kyne case wondered if the new era of cheap video equipment would turn the tide against false police testimony, Oliver says it hasn't happened yet.
"Police officers are largely insulated from the consequences. "Defendant's don't really have effective recourse," he says. "You could sue for false arrest, for false imprisonment, things like that, but with civil judgments cops don't pay individually -- usually the city indemnifies them. With a civil suit, there's no deterrent effect."
Robert Gangi of the Police Reform Organizing Project says there are a number of reasons why district attorneys are reluctant to bring perjury charges against police officers.
"One reason is the day-to-day pragmatic reality that district attorneys have to work with police in making their cases, so they're very gun-shy with taking steps that might alienate either individual officers or the NYPD as a whole," he said. "There's also the politics of it. Taking steps to impugn a police officer or the NYPD involves some political risk," Gangi says. "Every District Attorney in the city is a politician, an elected public official, and is therefore reluctant to be seen as an antagonist of the police.
Defense attorneys and police reform advocates are quick to stress that while the cases of Michael Premo and Alexander Arbuckle spotlight how video can unravel police misrepresentation, the vast majority of criminal defendants aren't so fortunate. Without video evidence, officers have even fewer reasons not to lie.
As Michelle Alexander wrote in her New York Times Op-Ed Why Police Lie Under Oath last month, police know that judges will always take their word over that of a criminal defendant, and "at worst, the case will be dismissed, but the officer is free to continue business as usual."
And while there's little encouraging officers not to lie, there can be substantial pressures to do it, says John Eterno, who retired as an NYPD captain in 2004 after 20 years on the force. Eterno, who now teaches criminal justice at Molloy College and has authored studies critical of the NYPD's focus on statistics, says testilying isn't a problem of a few bad apples, but a direct result of pressure to make quotas and protect their fellow officers. "It's a centralized issue," he says. "The pressure on individual officers to make quota and to have each others' back is just tremendous."
For a close look at how the pressure on officers to make quota can lead directly to dubious arrests, take a look at the Voice's NYPD Tapes series.
There have been a number of cases in recent years -- among them those of William Eiseman, Michael Carsey, and Adolph Osbeck -- in which district attorneys have charged officers with perjury. Critics aren't impressed, though. "My assessment is they will, from time to time, pick out a case where they charge an officer with perjury," Gangi says. "But in my view, it's almost totally cosmetic."
When Sgt. Bobby Hadid was sentenced for perjury in December after lying about unprofessional relations with a murder suspect's wife, his judge called it "A rare case of perjury." Habib got off with a sentence of probation.
With protest arrests, the profusion of video evidence may be starting to change the equation. The New York Civil Liberties Union is hoping to expand that effect to stop-and-frisk arrests with a new smartphone app. Video evidence can cut both ways. Many Occupy Wall Street protesters have been convicted or taken pleas after it became clear that the NYPD's Technical Assistance Response Unit had collected damning video. But defense lawyers are increasingly concerned that TARU footage is only being made available selectively. In Premo's case, prosecutors and police insisted there was no TARU footage shot at the scene of his arrest, even though Gerberg's video clearly showed a TARU cop staring through the viewfinder of his powered-up camera, apparently framing a shot.
Lawyers representing people arrested last March 17, when police forcefully raided Zuccotti Park, have been startled to learn that police and prosecutors claim there is no TARU footage from the entire incident. (Again, other video (like this one, starting at the 0:11 mark and this one, at 2:53) seem to undercut that claim.
"Video has resulted in some cases where the DAs will throw out a case or juries find them not guilty but it doesn't seem to have affected in any kind of sweeping way the conduct of police officers," says Gangi. "And that's because they're not being penalized. there aren't any severe sanctions. It's the same story again and again."
Here's the first complaint filed against Premo, signed by Officer Vincent:
Here's the superceding informormation, signed by Sgt. Jones:
And here's a transcript of Jones's sworn testimony in a court hearing the day before the trial started:
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