In yet another decision demonstrating that a judge whose career was spent prosecuting can show the fortitude to suppress, Brooklyn Justice Mark Dwyer rejected the testimony of NYC Police Officer Robert McNamara, who falsely claimed consent to justify a search of an apartment to locate a weapon.

In People v. Hazzard, police had probable cause to arrest the defendant outside his home for possession of a weapon, but couldn’t be bothered to get a search warrant for the apartment.  Instead, they went the old knock and talk route.

The door was opened by defendant’s mother, Lola Hazzard, who stated that she was the tenant of Apartment 3A and that defendant was not present. Officer McNamara recalled that Ms. Hazzard was Hispanic, dark-haired, and about 52 or 53 years old. She walked unaided.

Ms. Hazzard invited the three officers inside and walked them into the living room.

There the officers asked to search the apartment and displayed a consent form. They advised Ms. Hazzard that she was free to refuse, but she signed the form. The document, which was received in evidence, shows an apparently shaky signature in the name of Lola Hazzard. The signature appears underneath, not on, the line on the form intended as the signature line, and on top of handwriting specifying the date and apartment number.

Nothing special here, right?  Notably, Lola Hazzard had died between the time of the search and the suppression hearing.  But defense counsel Jacob Lipsky of Brooklyn Defenders, fought back.  First came the defendant’s “paramour” (Justice Dwyer’s word, not mine):

Madeline Rivera testified for defendant. She stated that in February 2010 Ms. Hazzard was 75 years old, frail, and bed-bound. As of February 2010 Ms. Hazzard had not been able to walk unassisted for a year or more. By February 2010 Ms. Hazzard also was often unable to understand what she was told or to respond to it. At times she might be lucid, but at other times she was incoherent.

Ms. Hazzard was dependent for her care primarily on two healthcare providers who would attend to her 12 hours each day. With assistance from Ms. Rivera and family members they fed her, dressed her, gave her the numerous types of medication prescribed for her, and washed her in her bed. Ms. Hazzard was incontinent, and wore diapers. With assistance she could be moved from her mechanical hospital bed to a chair or to a wheelchair placed close to the bed, in particular when she was to be transported by ambulette for kidney dialysis. Ms. Hazzard died on October 31, 2010.

Rivera disputed the officer’s testimony about the search, that they marched in without obtaining consent, and obtained Lola Hazzard’s signature by telling her to sign a paper to prevent trouble with “the housing.”  As to Ms. Hazzard’s condition, the defense called Betty Jenkins, a health care aide, and offered hospital records to corroborate Rivera’s testimony.

In light of the very particular testimony of P.O. McNamara, Justice Dwyer found it impossible to square with the defense evidence.

But upon examination, that theory unravels quickly. Officer McNamara was quite particular in describing his conversation with the woman who opened the apartment door. She identified herself as the tenant of the apartment and as defendant’s mother; Ms. Rivera would not have done so. And the officer was quite particular as well about the signing of the consent form; it was signed in the living room, after Ms. Hazzard was joined by Ms. Rivera. And, of course, the name placed on the form was Lola Hazzard. There is no way to square the officer’s account with the fact that Ms. Hazzard was confined to her bed.

While the decision fails to use language like “pathological liar,” which might well have been considered appropriately temperate under these conditions, the court nonetheless granted suppression.  And yet, the thorough decision raises an issue that makes this case cautionary.

Had only Officer McNamara and Madeline Rivera testified, this court would have concluded that Ms. Hazzard and Ms. Rivera consented to the search of Apartment 3A. The officer’s testimony was straightforward and facially credible. Ms. Rivera’s testimony was also facially credible, but she was an interested witness. However, Ms. Rivera’s testimony was corroborated by Ms. Jenkins’ apparently disinterested testimony and, as well, by the hospital records.

In other words, had the defense been unable to provide corroboration for the “interested witness” testimony of Madeline Rivera, the liar would have prevailed.  The rationale is that “main squeeze” (my word, not Justice Dwyer’s) Rivera was an interested witness.  P.O. McNamara’s testimony, however, was “straightforward and credible.”  The only problem was that it was a complete lie, but a lie from a “disinterested” police officer.

Most of the time, the defense is lucky to have any breathing witness, interested or otherwise.  This makes it a field day for the cops, who are trained to appear credible and can say anything they want without fear of contradiction.  Not much of an incentive to tell the truth.

The reality is that a police officer is every bit as interested a witness as a defendant, or someone who cares about a defendant’s disposition.  The cop is trying to make his bust on the stand, knowing full well that the short cuts taken, even the outright wrong committed, disappear in the legal ether if he tells the right story on the stand. 

He has a motive to lie, to cover his conduct and make the bust stick.  Let’s get real and stop pretending that cops don’t care whether the defendant is convicted.  They made the arrest and now they own it. They need to make sure a conviction follows.

While everything worked out in this case, due to the efforts of counsel in putting together corroborating evidence, the fact that the liar would have prevailed otherwise can’t be ignored.  And can’t be shrugged off.  Yes, Rivera was an interested witness.  So was McNamara.  Let’s not pretend otherwise.