You may recall my recent posts concerning the San Diego Police Department instructing blood technicians in DUI trials what to say in their testimony ("Police DUI Experts Instructed to Commit Perjury"), and a San Diego Sheriff's crime lab forensic toxicologist who had testified falsely in over 4000 DUI trials ("Perjured Police Expert Testimony – Cont'd"). The following story appeared today (April 7) in the American Bar Association Journal:
Expert Witness Credibility Questioned in San Diego Case
The prosecution of DUI cases in San Diego got a sobering jolt recently with the revelation that a veteran expert witness who testified for the government in more than 4,000 cases had falsified his resumé. .. On its face, the resumé discrepancy seems minor. Raymond K. Cole claimed his 1957 bachelor of arts degree from the University of California at Berkeley was in premedical studies. Actually it was in political science, as pre-med studies would have resulted in a bachelor of science degree.
For defense lawyers, however, the picture is much larger. An expert's credibility is the heart of a case, and good lawyers can drive truckloads of doubt through such holes. News of Cole's resumé discrepancy, they say, is merely the latest development in a series of complaints over the past severalyears by lawyers and judges that he fudged more than his background in trial testimony.
As early as 1998, Superior Court Judge Victor E. Ramirez, now retired and running for Congress, noted thathe had "serious concern about Mr. Cole" and found his testimony "less than forthcoming," according to court transcripts of a hearing on a motion for a new trial. While Ramirez refused defense counsel's request to issue a finding of perjury, the transcript reflects that Ramirez did consider Cole's testimony about instruments used to test for intoxication "something just less than perjury." … "I've been troubled by his testimony more than once," (Judge Richard) Mills said at one point, without offering specifics. He also said he found that…Cole's "testimony was, at least, intentionally misleading." The judge added that "Somebody's got to at least consider that it's time to do something, if not past time." …
But that's not the only issue riling San Diego's defense bar. In a separate matter, DUI defense lawyers recently obtained a document they consider a smoking gun that could undermine the credibility of other prosecution experts, the phlebotomists, or blood and alcohol technicians. DUI Blog, a Web log by Long Beach, Calif., DUI lawyer Lawrence Taylor, says the document appears to instruct the witness how to testify. For example, the document says: "The important thing to remember is that you always follow the same procedure, so even though you don't remember this particular individual, you know that you drew the person following our standard procedure." (Emphasis in the original.)
The script is highly questionable, says Shaun P. Martin, who teaches professional responsibility and criminal law at the University of San Diego School of Law. "What the San Diego Police Department has done here comes very close to, and probably crosses, the line and appears to encourage witnesses to testify to certain facts regardless of whether they're true," Martin says. Martin reviewed a transcript of the document taken from Taylor's blog. Martin has co-authored a law review article on the do's and don'ts of coaching witnesses. The script is "is simply telling a witness how they want the witness to testify in the mere hope that it might be true," Martin says. "That's improper."
The most disturbing thing about all of this is that it's not just a San Diego problem. The simple fact has long been that blood-alcohol witnesses working for police agencies view themselves as members of the law enforcement team, not neutral scientific witness: their job is to help the prosecution win — not to present the truth which may favor the defense. The only thing unusual about Raymond K. Cole is that he finally got called on it — after 30 years and 4000 acts of perjury. And the only thing unusual about the blood technician's script was that someone finally got caught with it.
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