His case gave rise to Joe Goldstein doing the new round of “testlying is still a problem” articles in the New York Times.
The Times examined Mr. Desormeau’s career in an article in October. More recently The Times investigated the phenomenon of “testilying” within the New York Police Department in a series of articles.
Testilying was a hot topic a generation ago as well, and after everybody got done with their “tsking” over it, life went back to normal in the courtroom, with every cop embellishing his testimony, filling in the details, glossing over the gaps, to make sure the bad dude got convicted. As the late Murray Kempton liked to say, “there they go again, framing the guilty.”
But what made 34-year-old former Detective Kevin Desormeau different is that there was no video in the good old days, so it was just the defendant’s word against the cops. Guess who won that pissing match?
According to Mr. Desormeau, after observing those two transactions, he and his partner got out of their unmarked car and stopped the man, Roosevelt McCoy, in front of a nearby Jamaican restaurant. Mr. Desormeau testified that he quickly recovered crack cocaine from behind Mr. McCoy’s waistband.
But surveillance videotape from the Jamaican restaurant showed Mr. McCoy shooting pool inside the restaurant when the detective said he was outside dealing drugs. The two detectives can be seen approaching Mr. McCoy inside the restaurant, bringing him outside and then searching him. On the video, they do not appear to find any contraband.
An “observation sale” is the bread and butter of narcotics cops. The testimony could come from a script, a random person on the street hands something that “appears to be currency” to a guy hanging on the street corner, who hands them back what “appears to be narcotics.” They swoop in, grab the perps and dope, and get overtime for the processing.
But in Desormeau’s case, there was video. But for video. And so he ended up sitting at the wrong table until the jury brought back a one-word verdict, upon which he was sentenced.
A state judge handed a light sentence on Wednesday to a once-decorated detective who had been convicted of perjury, sparing him jail time and accusing prosecutors of hypocrisy in their handling of the case.
The former detective, Kevin Desormeau, 34, was convicted at trial earlier this year of lying under oath in a drug case. Justice Michael Aloise sentenced him in State Supreme Court in Queens to a three-year term of probation and fined him $500, saying he had eroded public faith in the police.
Probation? Well, he was a “once-decorated detective,” though one might wonder whether he got his hardware for a lie as well. That’s the problem with perjurers; once you know someone is a liar, everything he’s ever said under oath is suspect. So why did the judge decide that this ex-cop shouldn’t spend a day, an hour, in jail?
Mr. Desormeau was once regarded as among the city’s most effective street cops, leading police officers in Queens in gun arrests and ranking third among officers citywide, his lawyer, John Arlia, said before the sentencing.
Well sure, it’s easy to be effective when you’re not constrained by facts, by truth.
Arguing against jail time, Mr. Arlia said that Mr. Desormeau’s “fall from grace” was already accomplished. He had lost the “career he cherished” as a police officer and had been reduced to working as an Uber driver, the lawyer said.
Sentenced to be an Uber driver? If he cherished his career so much, maybe he shouldn’t have been a perjurer. Fabricating crimes isn’t really supposed to be part of the job.
Mr. Arlia, the defense lawyer, also argued that jail was unnecessary from the perspective of deterrence. The prosecution and conviction of Mr. Desormeau alone was enough to deter other officers who might be willing to lie in order to justify an arrest or make a case stick, Mr. Arlia said.
“This case screams to every member of service: ‘Don’t even think of embellishing or making up facts to support an arrest,’” Mr. Arlia said.
And the tale thus comes back to the fact that testilying was always there before, and remains there now. NYPD has a scandal every 20 years or so, some cops get nailed, go to jail, over it. A commission is formed with a very important name at the top, like Judge Milton Mollen, or Judge Whitman Knapp, or particularly pleasant Maurice Nadjari, after which the NYPD is declared 99 and 44/100s percent pure. And the testilying goes on unabated.
But why then did Judge Aloise not drop the hammer on Desormeau for “tarnishing the shield,” which is one of those cool phrases that manages to make cops appear virtuous while this one “bad apple” besmirched all the other paragons of justice?
But the judge saved his harshest words for the prosecution, accusing the Queens district attorney’s office of relying on an untruthful witness to win the conviction. “This entire case disgusts the court,” Justice Aloise told Mr. Desormeau. “I will not become complicit in the district attorney’s hypocrisy by incarcerating you.”
That the Queens DA didn’t let the fact that they relied on testilying bother them too much is nothing new. In fairness, there’s no district attorney in the city who loses sleep over such banal improprieties. And who doesn’t appreciate a judge who refuses to be “complicit”?
But this leaves a few questions hanging in the stilted air of the sentencing courtroom. It’s not as if the judge is only allowed to say “harsh” words toward one person per sentence. He does not become “complicit in the district attorney’s hypocrisy” by imposing an appropriate sentence on Desormeau. They’re two entirely separate things.
And then comes the flip-side of those uber-harsh words uttered in former-judge, now Queens District Attorney, Richard Brown’s direction: if they were so disgustingly bad, what did you do about it? Desoreau gets probation. Brown gets a tongue lashing. Testilying goes on as it always has, with the only exception being when the cops are caught on video. And if so, the cop gets sentenced to drive an Uber.
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Definition of über-
1: being a superlative example of its kind or class
2: to an extreme or excessive degree
SHG,
As I understand New York law, the maximum prison sentence for the perjury in this case–lying while testifying in court–is seven years. General deterrence alone would seem to counsel for a prison sentence–for a cop lying in felony case–approaching the upper end of the sentencing range. On the face of it, the sentence, in this case, seems appalling low.
Anyway, I would be interested to know whether you think this case is an outlier. I would also be interested in knowing what sentence the “average” NYC judge would have imposed.
All the best.
RGK
First degree perjury is a “D” felony, which carries a sentence of imprisonment of a max of seven years. The bottom is probation. But you ask a very difficult question, since perjury prosecutions are themselves outliers, and police perjury prosecutions are unicorns, thus making an “average” hard to figure.
Had it been me, I would have imposed a bullet, making him eligible for shock incarceration and out in about seven months.
SHG,
Thanks.
I did a rough Guidelines calculation using USSG 2J1.3 for perjury and an enhancement under §3B1.3. for abuse of a position of trust.* Under that analysis, he would be facing between 30 to 37 months in prison. (Total Offense Level 19 and Criminal History Category I.) I could live with 37 months given the “real-time” nature of federal sentencing law, although an upward variance would not be out of the question.
All the best.
RGK
* I assume he did not testify at trial and therefore would not be subject to an obstruction enhancement. If he did testify, I would enhance him 2 levels for obstruction. At that point, he would be facing 37 to 46 months. If that enhancement applied, I would not blink at 46 months.
Much as I may not be the good detective’s biggest fan, I still think the parsimony clause is worthy of note. And I really hate the Draconian guidelines.
Interesting. Thanks.
All the best.
RGK
(Whispers, “not interesting, but what would I expect of that commie, pinko, softy criminal defense lawyer.”)
SHG,
Not so. I greatly respect your objectivity.
All the best.
RGK
That’s very kind of you.