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April 16th, 2008

Is the DA’s Office suborning perjury?



Newburgh - It may be true that the City of Newburgh Police Department cannot be blamed for the actions of a few bad apples.

But it is also true that the Orange County District Attorney’s Office, according to the County Law of the State of New York, is charged with "the duty...to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he or she shall have been elected or appointed."

It is further true that perjury offered as testimony is a crime in this state. Penal Law Section 210.15, entitled "Perjury in the first degree," is succinct:

"A person is guilty of perjury in the first degree when he swears falsely and when his false statement (a) consists of testimony, and (b) is material to the action, proceeding or matter in which it is made. Perjury in the first degree is a class D felony."

This past week, at least two City of Newburgh police officers had their testimony, given in open court, directly contradicted by a videotape of the events they were testifying about. In particular, Officer Michael Soldano, as he was led through his previous testimony by defense lawyer Michael Sussman while the tape was played, repeatedly offered statements that were obviously false not only to the educated professionals trying the case - though certainly that - but also to the dozens of lay persons in attendance.

Additionally, the tape, also played in open court, directly contradicted the police reports regarding the incident which had been submitted by City of Newburgh police officers.

But the contradictions - which were not subtle, but glaringly obvious to all in the courtroom - did not provoke a response consistent with the statutory duties of her office from the Assistant District Attorney prosecuting the case against the young men on trial, ADA Lynda Mitchell. Rather, Mitchell appeared to be bending and contorting the testimony to protect the officers from the consequences of their apparently criminal actions. And, more importantly, rather than dismissing the police officers as witnesses when the veracity of their testimony had been shredded by the videotape and cross-examination by Attorney Sussman, she continued to present their testimony as evidence in the case, which may, in and of itself, be a crime.

Wikipedia defines the crime of Subornation of perjury as follows:

"Subornation of perjury is a legal term describing the crime of persuading another to commit perjury (Garner, Bryan A., Ed., Black’s Law Dictionary, 7th Ed, West Group, St. Paul Minnesota, 1999, p. 1440). It may be applied to an attorney who presents testimony (or an affidavit) the attorney knows is materially false to a judge or jury as if it were factual. Generally, the knowledge that the testimony is materially false must rise above mere suspicion to what a reasonable attorney would have believed in the circumstances. For example, the attorney cannot be willfully blind to the fact that their witness is giving false testimony. An attorney who actively encourages a witness to give false testimony is clearly guilty of suborning perjury.

"Subornation of perjury is a crime. It is also an offense for which an attorney can be disciplined, disbarred or jailed."

The case is titled "People vs. Michael Tompkins, Ben Fahey and Jesse Carlson," all charged with disorderly conduct, resisting arrest, and obstructing government administration. In addition, Mr. Tompkins was charged with criminal mischief for allegedly banging his head against a police car, causing damage to the window of the car.

Sussman offered these comments Sunday morning:

"The last week of trial has demonstrated the absolute lengths to which the City of Newburgh police department and the DA’s office in Orange County are linked at the hip, and will go to any lengths to lie to gain convictions. Despite video evidence showing repeated instances of police force against men who were handcuffed and not resisting arrest or men who were doing nothing threatening to the police, the DA’s office is prosecuting three men - not the police who repeatedly used force without basis against them. The prosecution is of the wrong people. The police department reports have been shown to be entirely bogus, replete with blatant fabrications and critical omissions. The total absence of compliance with any standards is shocking."

Attempts to reach the Orange County DA’s office for comment were unsuccessful.

Is it too late for the officers to protect themselves against charges of perjury? Again, state law is very clear on the matter:

Penal Law Section 210.25: "Perjury; defense - In any prosecution for perjury, it is an affirmative defense that the defendant retracted his false statement in the course of the proceeding in which it was made before such false statement substantially affected the proceeding and before it became manifest that its falsity was or would be exposed (emphasis added)."

It was manifestly clear to a courtroom of witnesses that the testimony of these police officers, given in open court and elicited by Assistant District Attorney Lynda Mitchell, was false. The question is, will the Orange County District Attorney do anything about it - and, if not, who will?

3.5 / 5 (6 Votes)


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Reader Response
  • Francine
  • April 19th, 2008 This is a well written article and I would be interested in a follow -up article about what happens to these police officers if anything. Will anyone do anything about this?

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