From: The Advocate (published 12.1.05)
By Doug Harwood
Lexington police arrest about 75 persons a year for driving under the influence.
The overwhelming number of those arrested were convicted.
But one man who was convicted in lower court, and later acquitted on appeal, smells something fishy. In particular, he says, the arresting officer lied in court, and he suspects the lies were a deliberate effort to win a conviction.
City officials insist there was no such effort, but are refusing to release the report into the investigation of David Buckner’s complaint that an officer perjured himself.
Buckner, who lives in the county, has filed suit to force the city to release the records of the investigation.
The city claims it has nothing to hide, but that the investigation is a “personnel record,” and hence, exempt from the provisions of the Virginia Freedom of Information Act.
Buckner, through his attorney, Joseph M. Spivey III, says the city’s move is “a ruse to conceal what appears rationally to be a criminal investigation.”
“Explicit in Colonel Buckner’s complaint is that perjured testimony was given against him. One might rationally assume that this would give rise to a criminal investigation,” Spivey says in a memorandum filed with the Rockbridge Circuit Court.
At a hearing last month, Judge Mike Irvine noted that the city, in defending its decision not to release the records, didn’t rely on a FOI exemption for documents generated in a criminal investigation. “What this is,” he said, “is a criminal investigation. There was a complaint made that an officer had committed a crime. There was an investigation .”
Spivey latched onto that in his brief. “This suggests, of course, that [Lexington Police] Chief [Bruce] Beard is attempting to camouflage an investigation into a criminal matter, and the likely notoriety attendant to this open court hearing, by secreting it in a personnel file where it is arguably beyond public view.”
For years, the city has treated complaints against police officers as public information. And it has released the disposition of those complaints. But it has never released the details of the investigations into the complaints.
In Buckner’s case, the chief says that the investigation found that while the officer may have misstated some details of the arrest in court, they weren’t deliberate.
Or, as City Attorney Larry Mann puts it, “There may have been statements that weren’t accurate, but the intention of the officer, if he made such misstatements, is what is at issue and has been resolved to the satisfaction of the chief.”
Buckner has been wrangling with the city for eight months trying to get to the bottom of his case. It took some doing for him to be allowed to see a dashboard video made from the police cruiser that followed him out of town on the night of his arrest. But he has still not been allowed to see a transcript of his own interview with police that was done as part of the investigation of his complaint.
The complaint itself, and some other documents, are now in the court file in Buckner’s FOI suit. Some of them are printed below:
n Complaint [dated 2 May 2005]:
I am a 63-year-old retired lieutenant colonel of Marines. I served for more than 30 years in the Corps. I have resided in Rockbridge County for 13 years. My only moving traffic violation occurred when I was 16 years old.
n Events of 11 December, 2004
I attended the Rockbridge Choral Society’s Christmas concert in Jackson Hall, VMI, arriving at 7:30 PM. The concert ended at about 9:30 PM following which I attended the choral society’s reception at Preston Library, VMI. Food and wine were available. I had something to eat and consumed 2 1/2 small plastic cups of wine, approximately 14 ounces.
I departed Preston Library at about 11:00 PM, walked across the parade deck to my car and departed the post. I proceeded south on Jefferson Street, west on Washington Street and west on Nelson Street. I passed a Lexington police cruiser sitting in the lower Lenfest Center parking lot by the bridge over Wood’s Creek, and continued west on Nelson and out of the city. I was abreast of the pond on the north side on US 60 when blue flashing lights came on behind me. There was no place to pull off the road and I proceeded to the cinder block building on the north side of US 60, just east of County Road 666. I pulled into the gravel parking lot at least 50 feet from the road. A Lexington police cruiser driven by Officer Fitzgerald pulled in behind me.
Officer Fitzgerald asked me if I had been drinking and I replied that I had had some wine. He asked for my driver’s license and registration, which I showed him. He then asked me to get out of the car so he could conduct a field sobriety test. I said, “fine.” He explained the test items. Regarding the one-leg balance, I said that I probably could not do that due to recent double-knee replacement surgery. He told me to try anyway. As I had thought, I couldn’t do that task. His testimony at my subsequent 6 April 2005 trial contained minutely detailed facts about each and every action of mine, signifying that Officer Fitzgerald either had perfect recall five months later or very detailed field notes.
During the sobriety test, two additional Lexington police cruisers arrived and entered the lot from its west end. One officer was Fred Smith and the other was a shorter white officer whose name I did not get. I finished the test and Officer Fitzgerald said he wanted to give me a field breathalizer test. I said, “fine.” The result was over 0.09.
The three officers conferred for some time. Officer Fitzgerald then told me he was arresting me and taking me to the Sheriff’s Department for a formal Blood Alcohol Content test. He handcuffed me, placed me in his cruiser and we drove to the Rockbridge County jail building., where Deputy Sheriff Southers administered the BAC test at 12:13 AM, 12 December and the results were 0.080.
At my trial on 29 December 2005 before Judge Gordon Saunders I pled guilty to the 0.080 BAC. Officer Fitzgerald’s testimony was quite brief. He said his probable cause for stopping me was failure to use turn signals at Washington Street and Nelson Street, and that I was weaving. He made no mention of where he activated his flashing lights or where he conducted the field sobriety test. After sentencing, as officer Smith was escorting me to the clerk’s window, I said, “You know, he was in the county when he stopped me.” Smith replied that they can go a mile into the county. Then he said a curious thing. “Well, you know, he’s young.”
Later that day I talked to a good friend who is a retired lawyer. He advised me to file an appeal and said he would identify the best lawyer to handle the case. That lawyer was H. David Natkin. During the course of their conversation, Natkin said there was a new officer on the Lexington police force who had been boasting that he was going to break all records for DUI arrests. That officer was Officer Fitzgerald.
At retrial, on 6 April, 2005, my defense before Judge Irvine’s Circuit Court basically rested on the testimony of a forensic toxicologist. Based on what I had to drink, what I had to eat and the time span between my last drink and my being stopped, he concluded that I was below 0.080 when driving. I was acquitted.
n The Complaint
My complaint is that Officer Fitzgerald gave false testimony in my case at trial on 6 April, 2005, to wit:
1. Officer Fitzgerald stated that he activated his flashing lights shortly after my failure to use a right hand turn signal at Nelson Street. In fact, he activated his flashers well past the city limits. If he is to be believed, then a) the officer sitting at the Lenfest Center parking lot would have seen him do so, or b) he would have, in fact, followed me for nearly a mile while I was allegedly weaving, without activating his siren or notifying the dispatcher that he was involved in an O. J. Simpson-type pursuit.
2. Officer Fitzgerald testified that he administered the field sobriety test one foot on the road on hard, smooth asphalt. In fact it was administered roughly 45 feet off the road on a gravel lot. If he is to be believed, then a) I barely pulled off the road, which would have left him with no room to park behind me, or b) we both came to a stop well inside the gravel lot and he then marched a suspected drunk back to the road to conduct a sobriety test, and c) the two more senior officers who arrived allowed a sobriety test to be administered virtually on a public road, and at night.
I believe that Officer Fitzgerald’s false testimony at trial regarding where he activated his flashers was an attempt to enhance his probable cause case. After all, why would he wait until he was outside city limits to apprehend a driver who had actually been “weaving” for a mile as Officer Fitzgerald testified at my second trial?
I believe the false testimony regarding the location of the sobriety test was motivated by a pre-trial letter from Mr. Natkin to Mr. Lawrence Muir, Assistant Commonwealth’s Attorney, who was prosecuting my case. In the letter, Mr. Natkin stated, “there were difficulties with the field sobriety test relating to Col. Buckner’s double knee replacement operations.” Mr. Muir has assured both Commonwealth’s Attorney Joyce and me that he mentioned these “difficulties” to Officer Fitzgerald but that he made no suggestion to Officer Fitzgerald that his testimony place the field sobriety test on asphalt versus gravel. Officer Fitzgerald’s testimony did that very thing on the witness stand at the 6 April trial. On cross examination, Officer Fitzgerald maintained his “one foot off the road on asphalt” testimony despite numerous opportunities to modify his testimony.
n Summary
I believe law enforcement officers should vigorously enforce drunk driving laws. I spent over 30 years in an organization that treated a DUI conviction as the career equivalent of a kiss of death. But law enforcement is not a game to bag convictions the way a fisherman lands fish in a bass fishing tournament.
n Conclusion
I want my complaint to be thoroughly and subjectively investigated by the police department and the city. I want to be informed of the results and conclusions of the inquiry, and I want to be told what steps will be taken to correct the deficiencies that currently exist in the Lexington Police Department.
n
The police took about a month to investigate the complaint. When the investigation was finished, Buckner received the following letter:
June 6, 2005
Dear Mr. Buckner:
This is to inform you that the investigation regarding your complaint against Officer Michael Scott Fitzgerald has been completed by Sgt. Rick Sutton. The investigative report is quite thorough and although I know you requested a copy, city policy prohibits it.
Sgt. Sutton interviewed the officer who is the subject of your complaint, the two officers who were present at the scene of the arrest, the Commonwealth’s Attorney and the Assistant Commonwealth’s Attorney who heard the case and the appeal. Further, Sgt. Sutton reviewed the pertinent logs, incident report, the certificate of analysis, the operator of the test equipment, the video recordings of the stop and, of course, interviewed you.
Based on this report it is clear, as Judge Irvine noted, that the stop was a proper one. Further it is clear that although there were discrepancies in the officer’s testimony, there clearly was no intent to mislead or falsify information that would lead to a conviction. As I understand the Court’s ruling, the sole basis for dismissing the charge was that the Commonwealth offered nothing to rebut the testimony of your expert. As I am sure you can appreciate, it takes quite a while to develop the powers of observation that are necessary to remember and to be able to repeat, under considerable pressure, all the details of an incident.
You note in your letter that you want steps taken to correct deficiencies in the Lexington Police Department. You do not specify what those are. If you have some specific issues you would like addressed please feel free to forward them to me.
Sincerely,
Bruce M. Beard, Jr.
Chief of Police
n
A few weeks after receiving the chief’s letter about the investigation of his complaint, Buckner filed a Freedom of Information Act request for “any and all information” regarding that investigation. The request included “any and all notes, memos, correspondence, pertinent logs, incident report, interview[s] the video recordings of the stop and arrest,” etc.
Two days after the request was filed, City Attorney Larry Mann said that the requested materials are exempt from the public disclosure law. “Because the material requested is a part of the personnel file of the officer, the [police] department respectfully declines to produce that information.” He also cited the exemption granted to information given in confidence to a law enforcement agency.
Mann’s response triggered another letter from Buckner. He disputed Mann’s characterization of some of the materials — the video, and notes of interviews, including Buckner’s own with Sgt. Sutton — as “personnel” records.
And as for the “in confidence” exemption from the F.O.I.A., Buckner said, “[T]his applies to protection of an informant from retribution or prosecution. I trust that neither situation applies to any of Sgt. Sutton’s interviewees.
Buckner’s letter goes on to say:
Let me again make clear what my complaint against Officer Fitzgerald was and was not. It was not that his stop of me was unjustified. I accept the fact that failure to make two right hand turn signals meets the low but convenient bar set for “probable cause.” It was not about having to perform elements of a field sobriety test that I told Officer Fitzgerald I probably couldn’t do because of recent double knee replacements. It was not about having to spend more than $1,200 defending myself. It was not about the emotional toll this episode took on me, and more importantly upon my wife. It was not even about the irreparable damage to my reputation. It was about Officer Fitzgerald’s false testimony during my 6 April 2005 appeal trial in order to enhance the state’s case.
Chief Beard’s letter to me informed me that Sgt. Sutton’s investigation was complete. While granting that “there were discrepancies in Officer Fitzgerald’s testimony,” it was “clear that there was clearly no intent to mislead or falsify information that would lead to a conviction.” The Chief then goes on to say that, as he understood it, the sole basis for dismissing the charge against me was the Commonwealth’s failure to rebut my expert witness. What an unusual statement, but made even more so by its juxtaposition with the previous statement. One is left with the impression that the chief looks at false testimony like a basketball referee, “no harm, no foul.”
Readdressing the “discrepancies,” the chief goes on to write, “it takes quite a while to develop the powers of observation that are necessary and to be able to repeat, under considerable pressure, all the details of an incident.” Considering that the “details” were whether or not he chased me for nearly a mile with his lights flashing and whether or not he had me perform a field sobriety test a foot off the road, the chief must believe that either I am exceedingly gullible or that Officer Fitzgerald is exceedingly dull.
During our telephone conversation I assured you that I was not going away in this matter. Neither temperament nor training disposes me to quitting. Let me assure you of another thing. I want to believe that Officer Fitzgerald clearly had no intent to deceive. Of course I do. I want to have faith in the honesty and integrity of my police. I personally have seen the opposite in more countries than I care to count.
I believe the Virginia FOIA adequately shields those activities of the police necessary to safeguard the ongoing prosecution of a criminal investigation or the safeguarding of a witness or informant from retribution. Neither of these applies in this matter.
If Sgt. Sutton’s investigation is so clear in its exoneration of Officer Fitzgerald then you should want me to see the material instead of shielding it behind two inappropriate legal citations.
n
In late July, the city attorney and the chief relented slightly, and granted Buckner’s request to see the video of the traffic stop that was filmed by a dashboard camera in Fitzgerald’s police car. Buckner and David Natkin went down to the police headquarters and watched it.
In a letter to Lexington City Manager Jon Ellestad, Buckner says:
The video was revealing. It showed that Officer Fitzgerald 1) activated his flashing lights nearly 3/4 of a mile later than he testified in court and 2) that my field sobriety test was not conducted one foot off the road on hard asphalt, as he adamantly testified in court, but rather 30-40 feet off the road on a gravel surface.
The video [which was not played in court] revealed two additional interesting facts. First, the brief portion of the video showing the “chase” clearly shows no “weaving” as Officer Fitzgerald testified in both my District and Circuit Court trials. Second, when Officer Fitzgerald pulled behind me at the stop, he failed to position his cruiser directly behind my vehicle. Consequently, neither Officer Fitzgerald not I ever appear on the tape, there is no video recording of my field sobriety test and there is no record of my being informed of my rights prior to the field sobriety or breath tests.
I twice told the City Attorney that I wanted a copy of the video. I was refused. Since I have now viewed the video, there is no valid reason to refuse copying.
It is time for you to intervene in this matter and instruct your City Attorney and Chief of Police to comply with the letter and spirit of the VA FOIA. Further stonewalling on the city’s part brings the time ever closer for this matter to be aired in the courts or in the 4th Estate or both.
n
Mann admits that by not releasing the details of the report, it is difficult to refute much of what Buckner has alleged with more than a simple denial.
But, he notes, “Chief Beard testified that the report contained interviews with various parties involved in [Buckner’s] trial and other individuals who deal with Officer [Michael Scott] Fitzgerald. Fellow officers, the Commonwealth’s Attorney and other unnamed parties were asked to provide candid information about the officer’s testimony at trial as well as, we can rightly assume, his general reputation for veracity and his conduct in other cases.If all such information were subject to public scrutiny the witnesses would certainly not be as willing to be completely candid with the investigating officer. Certainly we can agree in saying that . . .nothing could be of greater public and judicial interest than the integrity of our police officers, especially their total candor in giving testimony under oath.’ We can also agree that honest assessments of an officer’s conduct are vitally important to any police department and our judicial system as a whole. Without the free exchange of information regarding an officer’s conduct we run the risk of missing essential information in assessing any officer’s veracity. To allow release of the interviews with the witnesses will have a chilling effect that will make honest assessments of an officer’s conduct impossible.”
Spivey, on the other hand, says that the city’s treating the investigation as a “personnel” record is “irrational, unreasonable and inconsistent.”
What logic is there, he asks, in having complaints made public, but not the reports of the investigations into those complaints?
“This sort of documentary diaspora cannot engender confidence in the citizenry that law enforcement is fair and evenhanded,” Spivey says. “Indeed, [Buckner] believes that the ordinary citizen would think that there was something . . .rotten in Denmark.’ “
By locking the investigation away from public view, Spivey says, the city is engaging in “precisely the sort of governmental secretiveness” the Freedom of Information Act is supposed to prevent.
Judge Irvine is expected to make a ruling in the case before the end of the year.