It was a simple bust, as Police Officer Steven Lupo explained.
It looked like an open-and-shut case. A cop pulls over a car, walks up to the driver’s door, and sees a plastic baggy of marijuana. He brings in a drug-sniffing dog to prove probable cause for a search, gets a warrant, and finds a kilo of weed in the trunk.
Text book all the way. The request for a medal for excellence almost writes itself. On cross-examination, Michael Diamondstein played the “are you sure” game, locking Lupo into his testimony. Close your eyes and envision the smug cop on the stand, calmly testify with that half-smile on his face, believing that he, Police Officer Lupo, was king of the courtroom.
In court, Diamondstein asked Lupo to confirm that account, according to a transcript of the hearing.
“Before you got to Mr. Farsi, did you open the rear driver’s side passenger door and take that individual out and pat him down?”
“No,” Lupo said.
Then Diamondstein asked, “I just want to make sure that we are clear that you certainly didn’t just open the door prior to any conversation, take him out, and pat him down. That definitely didn’t happen?” Diamondstein said.
“Correct,” Lupo replied.
Change the names and this could be the transcript from a thousand other trials. Except what came next doesn’t happen often.
Then defense attorney Michael Diamondstein produced the video.
Turned out reality was different.
The video taken from nearby surveillance cameras contradicted key facts in Lupo’s report and sworn testimony. Most crucially, Lupo and an unidentified supervisor are seen rummaging through the trunk hours before a warrant was issued.
Straight down the line, Lupo lied, secure in the mistaken belief that he could plop his donut encrusted butt on the witness chair and tell a completely fabricated story about how he’s just about the dandiest cop ever, just doing his job, applying the Constitution and keeping us safe from the bad guys. Except he was a liar, and Diamondstein had the video to prove it.
Judge Lydia Y. Kirkland tossed the case after the video was played. Had no video been played, she would have been sentencing the defendant instead.
“I can just tell you from my experience,” said veteran defense attorney Diamondstein, “in the majority of cases, while the clients may not deny having narcotics, in the vast majority of cases the circumstances surrounding the arrest did not happen as it was described in the paperwork or in court.”
Years ago, New York Daily News columnist Murray Kempton coined the phrase, “there they go again, framing the guilty.” It’s one I repeat often, as its point reflects the most problematic part of law enforcement and law. Despite the fact that Lupo turns out to be a liar, there will be a great many people who think to themselves, “so what?” The guy was a drug dealer, and who cares that a cop stopped a drug dealer, seized the drugs and then said what he had to say to lock the scum away.
The ends justify the means, especially when there’s an undercurrent that if it wasn’t for criminal-coddling technicalities that make a cop’s job so difficult, he wouldn’t have any need to lie. In fact, in a perfect world, there wouldn’t have been a trial at all, Lupo’s word being all any law-abiding citizen needed.
This story was sent to me by a young Philadelphia civil litigator who was shocked (shocked!) that police officers would so brazenly lie. He was outraged that such a thing could happen.
If they don’t press charges against the police officer for perjury, then our system of justice is a joke. I don’t practice criminal law, but it’s like the courts downright refuse to make the police and prosecutors follow any of the rules, unless it’s so egregious that it ends up on the news. (like Duke Lacrosse). One way of looking at this is the prosecutor proffered perjured testimony… (though I hope the cop just lied to the DA).
To anyone who has spent time in the criminal law trenches, this has to raise a chuckle. Even the implicit epiphany misses most of the problem. Lupo wasn’t a lone indian, but working with his partner, and later a supervisor, all of whom studiously violated as many constitutional rights as they could get their hands on. What of the partner? What of the supervisor? They were all complicit, both in the violation of constitutional rights as well as the conspiracy to lie to the court. No one came forward to out Lupo’s lies.
But the bigger picture, as Diamondstein notes (and Kempton reiterated decades ago), is that this isn’t the outlier, but the norm. There’s a game played in courtrooms, where testimony is provided that conforms to what naive or compliant judges and juries expect of police officers. But cops know how things go in the streets, and laugh at the law. They do what they think they have to do, what the believe they can get away with, and tell the story to the court they know it wants to hear.
When it’s only a bad guy involved, there’s no hard feelings. It’s a game. We fight over rules, and they lie about them to put the bad guy in prison. Everyone goes home feeling pretty good about themselves.
Had Diamondstein not been able to get his hands on a video that proved Lupo a liar, the case would have gone down the usual path. Lupo would have gotten another ribbon for his shield, and the defendant would be doing some time in the pokey. The judge wouldn’t have broken a sweat buying the testimony and imposing sentence, and the prosecutor would have enjoyed a beer and the admiration of his friends for a job well done.
There was a video, this time.
After the video was played, and Lupo’s lies were revealed to even the blindest person in the room, the brazenness wasn’t over.
After seeing the video, Kirkland took over questioning. In response to her questions, Lupo admitted that his testimony about never having searched the trunk was incorrect.
“I totally forgot about he asked me to open it at one point,” Lupo said, referring to the supervisor on the scene.
“Without a warrant?” Kirkland asked. “Did you have a warrant?”
“No,” Lupo said.
He forgot. All is forgiven. Try that with anyone other than a cop and see how well it works out.
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That is a great post. May you get a million hits.
It is time for the people to demand that cops caught “testilying” be prosecuted to the fullest extent of the law. That should stop this unconscionable practice, rather quickly, I would assume.
For me, as a relatively new criminal defense attorney, this story reinforces an obvious but important lesson: get off your ass and go see the location of the stop yourself. I’m speculating somewhat on this, but I don’t think its a huge leap to say that the only way defense counsel knew that video from nearby surveillance cameras existed was because he personally viewed the scene (or had a good investigator view it). Had defense counsel simply relied upon google maps or photographs, he very Well may have missed the cameras in the area.
An honest failure of memory, or momentarily misspeaking is construed by the police, prosecutor’s office and courts as deliberate falsehood, which results in perjury charges (and conviction).
But a cop can blatantly lie over and over, get caught over and over, even deny the truth of video evidence to present his side, and when it’s finally proven he’s lying, he can apologize for “forgetting” and be completely forgiven.
WHY do courts continue to give so much weight to the testimony of proven liars?
Tell your friends.
I wouldn’t count on it.
Because they’re the system, and we’re not.
Has anyone been able to get a judge to suppress testimony from a known liar?
It’s good to see this sort of story, but stories like this are so vanishingly rare that they might as well be scenes from “Person of Interest” or some other such nonsense.
The overwhelming majority of cases like this will slip through, due to the huge imbalance in resources between the defence and prosecution: the prosecutor can flush as much public money down the chute as he likes (‘tough on crime’ > ‘frugal with tax money’), whereas the defence faces a much tighter budget constraint.
The hope is that this Lupo, his partner and supervisor can NEVER AGAIN sign off on any document on which the State relies in court: their names should be red-flagged by defence attorneys, and any time they get a client with ‘Lupo’ as arresting officer they should be permitted to put this attempted perversion of the course of justice before the jury.
Yes the guy was guilty of possessing a plant that politicians don’t like us to have. That’s not the point: the abandonment of due process meant that the evidence was tainted, and the perjury prevented that taint from disqualifying the evidence (and a stroke of genius, diligence and LUCK from the defence attorney – for which, kudos).
So long live the “Lupo” defence: “Your honour, the defence moves that this evidence be ruled inadmissible, on the basis that the arresting officer has been shown to be a wilfully perjured person with an utter disregard for his obligations both as a sworn officer and a witness”.
Yeah… I know. Not gonna happen.
What also is not gonna happen is a flood of public defenders going all CSI on every camera installation near every stop scene: the bad guys (the badged costumed doughnut-inhalers) rely on the fact that most defendants don’t have the resources to even begin to do the required forensics, and have limited ability to subpoena the footage if it exists.
Yes, police officers busted on the stand are assumed to be impeachable. I forget what it is, but there’s a either a nickname or a bureaucratic term for these officers.
And really, just read this in the voice of your favorite 12 year old (or Jon Lovitz’s “Tommy Flanagan” character) who has been called on the carpet: “I totally forgot about he asked me to open it at one point…” He just forgot the “Yeah, that’s what happened!” P.S. He carries a gun.
What form of communication will be required for government thugs to comprehend that this kind of high-handed behavior is not acceptable and will not be tolerated?
And where do you see it not being tolerated? Lawyers have seen this tolerated forever, and only when extreme evidence, such as a video, appears are judges constrained to deal with it. Yet, do you notice that nowhere in the article is it said that Lupo was immediately fired from the police department, arrested and taken into custodey?
No, neither do I. So there’s no downside to a cop lying and no incentive not to lie.
When was the last time a cop was prosecuted for perjury? The last time I heard was during the OJ trial, and the cop got a $200 fine and a book deal. Hardly a disincentive to testilie. Is it any wonder that more people view police departments as a street gang with good dental or an army of occupation rather than a constabulary organization?
At least there’s this: “Philadelphia’s internal affairs investigators are now probing Lupo’s conduct, and he will no longer be used as a witness in criminal cases.” Although, as you say, the partner and supervisor should also be investigated.
Will in the future not be tolerated. Hopefully very near future. But perhaps I’m being overly optimistic, and just about everyone will bend over when ordered to.
The bottom line is that like Lupo,99% of all cops commit the crime of perjury on the boarder line of treason every time they put on a gun, badge and uniform. Do not all so called law enforcement people take an oath to protect and preserve the Constitution of the United States of America including their own state and yet they couldn’t even tell you what the first article of the constitution is and if they could they wouldn’t be doing what they are doing or else they are validating that they are criminal thugs with guns and badges.
Cops are not the only ones that lie. Just take a good look at the real justus system. I say when these thugs violate rights, hurt and even murder innocent citizens, those who hired the thug should also be held accountable.
Policing for profit has got to stop.
“When armed force compels compliance with mythical laws and money is demanded for its violation, power will corrupt and greed will never be satisfied.”
Richard L Koenig