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Court Grants New Trial, Citing a Detective’s False Testimony in an Earlier Case


August 30, 2012

A federal appeals court in Manhattan ruled on Thursday that a man convicted of weapons possession should have been able to tell the jury that the main witness against him, a New York City police detective, had been found to have testified untruthfully in proceedings involving an unrelated gun case.

The conviction of the man, Lance White, in 2009 was overturned, and he was granted a new trial in the decision by a three-judge panel of the United States Court of Appeals for the Second Circuit, which cited the trial judge’s ruling on what the jury could hear and what it called another error by that judge.

The panel noted that the judge in the earlier case had “unequivocally discredited” portions of Detective Paul Herrmann’s testimony, even suggesting that he had “recanted certain aspects” and implying that he had lied in a criminal complaint.

“These credibility judgments are plainly probative of Herrmann’s veracity and could affect a jury’s determination as to his willingness to lie to secure a criminal conviction,” Judge Guido Calabresi wrote in a two-to-one majority opinion for the panel.

The earlier case involved the arrest in 2008 of Phoenix Goines, who, Detective Herrmann claimed, had been stopped on the street in Brooklyn on suspicion of having a marijuana cigarette. There was a chase, and Mr. Goines was subdued, Detective Herrmann said.

But the judge in the earlier case, Frederic Block of Federal District Court in Brooklyn, repeatedly questioned the credibility of Detective Herrmann’s testimony in various proceedings and suppressed a gun and ammunition the police said had been found on Mr. Goines because of what he called an illegal seizure; the indictment was later dismissed.

The ruling comes at a time of intense public debate over the Police Department’s practice of stopping, and in many cases frisking, people on the streets, an approach that the department maintains is used only after officers develop reasonable suspicion of criminality. Officials say it has helped to reduce crime.

“This is what happens when the government does not take seriously when police officers are found to lie in stop-and-frisks,” said Deirdre von Dornum, a lawyer with the federal defenders’ office, referring to the Goines case and its aftermath. “It hurts everyone; it upturns our system of justice.” Ms. von Dornum represented both Mr. Goines and Mr. White, who was arrested under different circumstances.

The United States attorney’s office in Brooklyn said it was reviewing the ruling and considering its options. The Police Department did not respond to requests for comment.

Mr. White was also arrested in 2008. In his case, a joint Police Department and F.B.I. task force, acting on information provided by a confidential informant, stopped a maroon minivan in Jamaica, Queens, in which Mr. White and four women were occupants, the panel said.

A search of the minivan turned up three guns, including one found in Mr. White’s right front pocket, the police said, according to the ruling.

At Mr. White’s 2009 trial, also in federal court in Brooklyn, his lawyer, Ms. von Dornum, had sought to cross-examine Detective Herrmann about Judge Block’s adverse findings concerning his credibility. But the judge, Nicholas G. Garaufis, agreed to a government request that she be precluded from doing so.

Judge Garaufis concluded that Judge Block had made no finding about the detective’s “general veracity” and that the Goines case was “entirely unrelated” to Mr. White’s, Judge Calabresi noted in his ruling.

But Judge Calabresi said that the appeals court had held that a witness can be cross-examined based on “prior occasions when his testimony in other cases had been criticized” by a court as “unworthy of belief.” His opinion was joined by Judge Rosemary S. Pooler; Judge Dennis G. Jacobs dissented.

Daniel C. Richman, a Columbia law professor and former federal prosecutor, noted that police officers involved in drug and gun interdiction would often testify repeatedly in court cases. A central question the ruling raised, he said, “is for how long and in what ways the finding that a police officer has lied in court will haunt him in future cases.”

He added that the panel’s decision made it “far more likely that future juries will hear that an officer has previously lied or somehow been found untruthful. And it will make prosecutors think twice before they use him in future cases.”





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