WI: Cops covering up for cops again -- and judge is furious

Late last year, Detective John Behning found himself in a place no cop wants to be. He was on the stand admitting to a judge that he was responsible for allowing the destruction of an important piece of evidence in a felony burglary case in which an off-duty officer shot the defendant.

Specifically, Behning let the city crush the defendant's car. The off-duty officer had fired up to nine shots at the gold 2001 Kia Rio - striking the driver twice in the hand - after the cop said he confronted the defendant alone in his garage after dark. The off-duty officer said he was acting in self-defense.

Behning, the lead detective in the case, told the judge it slipped his mind that he had OK'd the release of the vehicle. He also forgot to mention this fact during more than two dozen conversations with a couple of prosecutors over 1 1/2 months. "That's definitely some egg on my face," Behning conceded at the December court hearing.

It was a stunning admission. The car, in fact, was crushed just three weeks after the incident and two days after the defendant's lawyer asked to see all the evidence. "In this case, it's inconceivable to me that any good defense lawyer wouldn't want to see the car," said Dean Strang, a top criminal defense attorney who has no involvement with the case. "You've got to see the car on this."

The defendant, Ronald Carter - a former city employee with a history of burglary convictions - said he broke down in tears when the detective confessed to the error.

Even prosecutors were surprised by the case's unusual turn. "The car should not have been crushed," Assistant District Attorney Thomas Potter later wrote. "On that we can all agree."

But one question remains unresolved to this day: Was the detective just sloppy and incompetent, or did he intentionally destroy evidence that might contradict the off-duty cop's story?

Judge Jean DiMotto minced no words when she issued her decision dismissing the case. "The Court determines that MPD's concealment of the car's release and destruction over a period of six weeks with affirmative misrepresentations to both the State and the defense is not only egregious but permits the conclusion that MPD through Det. Behning knew of the potential exculpatory value of the car," DiMotto wrote in December.

The veteran judge didn't stop there. DiMotto accused Behning, his superiors and the Police Department of acting "in bad faith" by giving up custody of the car and not telling anyone for weeks. She added: "The egregiousness of the violation, demonstrated by its lengthy continuing concealment with accompanying misrepresentations, warrants dismissal."

That's some unusually harsh language from a judge. So harsh, in fact, that a prosecutor suggested that she may want to tone down her conclusion. "Carelessness is not always an excuse, to be sure," Potter wrote in a letter to the judge after the ruling was issued. "But it does materially change the legal analysis and is vastly different from the way the Court portrays the situation."

Unmoved by the letter, DiMotto stood by her decision in a filing in early March. She declined to discuss the case last week. The state has decided not to appeal.

At the start, this appeared nothing more than a simple burglary case. According to the criminal complaint, the off-duty officer, John Merrill, noticed late on Oct. 8 that the light was on in his detached, 2½-car garage. Merrill, 32, testified at the preliminary hearing that he then grabbed his badge, gun and a flashlight and headed to the garage, where he said he encountered Carter.

Merrill, who has been on the force since 2004, said the defendant then dashed to his Kia Rio. For some reason - he's given different explanations to different people - Merrill grabbed onto the car as the driver took off. The criminal complaint says the off-duty cop fired his weapon a couple of times while being dragged by the car for a short distance and then shot three or four more times as Carter drove off.

Investigators turned up little physical evidence in the case. Carter's fingerprints weren't detected on either of the off-duty cop's cars stored in his garage, and none of the cop's belongings turned up in Carter's car. In the area where the shooting occurred, police recovered nine shell casings that matched those from Merrill's weapon. The magazine of Merrill's.40-caliber Smith & Wesson semiautomatic had six unused rounds out of 15. The defendant, Carter, was not armed.

Had it gone to trial, it would have been a classic he-said, he-said.

Carter and his lawyer argued that Carter - who has been convicted of burglary three times - was in the area visiting his brother, who lives three blocks from Merrill. As Carter walked in an alley near Merrill's house, they say, Merrill accused Carter of breaking into his garage. The off-duty cop ordered the defendant to stop or be shot.

Carter said last week that he dashed to his car because he didn't want to be killed. He said the officer reached into the open window on the driver's side of the car, hit Carter in the face with the gun but then fell to the ground as Carter drove off. Merrill fired a number of shots from behind the car, taking out three tires and hitting Carter in the index and middle fingers of his right hand. "I said, 'Lord, don't let him kill me,' " Carter said last week.

After the preliminary hearing on Oct. 27, Carter's defense lawyer, Eric Brittain, filed a routine motion with the court and prosecutors to see all of the evidence in the case. Prosecutors initially resisted allowing inspection of the vehicle. But the judge said it could prove important in determining the officer's credibility and was part of the whole episode.

The expert hired by the defense, John DeRosia, said cars typically are impounded by a police department until a case such as this one is resolved. "The question in my mind was the position of the shooter as he fired," DeRosia said last week.

For the better part of a month, the defense lawyer tried to set up a time for DeRosia to view the car but encountered a variety of delays. Finally, on Dec. 15, DeRosia went to inspect the vehicle at the city's tow lot. After waiting for 1½ hours, he was told that the car had been destroyed on Oct. 29.

Behning, the detective, was put on the stand to explain what happened. He initially pointed the finger at prosecutors and a police lieutenant. Then Behning acknowledged that he was responsible for releasing the car. "I had forgotten - completely forgotten about it," Behning testified. "It was my assumption when I was approached by the ADA's office that it was still in evidence."

In her decision, the judge called the detective's testimony "nothing short of remarkable" and "unreasonable." DiMotto accused him of stringing along both the defense lawyer and prosecutors. She determined that Behning released the vehicle on Oct. 27, two days before it was crushed.

"Det. Behning's action was taken not only very early in the prosecution of this case - on the date of the Preliminary Hearing, at most two weeks after the Complaint was issued and no more than three weeks after the crime allegedly was committed - but on the very day that the defendant demanded in writing to have access to the car for inspection," DiMotto wrote.

What makes that even more interesting is the judge's remarks about Merrill's testimony at the preliminary hearing. She said a fair reading of his account "reasonably permits a good argument for reasonable doubt."

In response to the ruling, Police Chief Edward Flynn asked the FBI to investigate the matter.

Richard Ruminski, the special agent in charge of the Milwaukee office, said he tried to determine whether the cops in the case violated federal civil rights laws. Carter, the defendant, is black; Merrill, the off-duty officer, is white. Along with interviewing the officers, the FBI also spoke with the judge about her ruling.

"We have completed our assessment of this matter and determined that no further investigation is warranted at this time," Ruminski wrote in a February letter to Flynn.

In short, the federal cops didn't think the local cops should be brought up on federal charges.

MPD spokeswoman Anne E. Schwartz said Behning, a 13-year veteran, remains on active duty. She said there is an ongoing internal investigation of Merrill over the shooting, but she noted that the district attorney had cleared the cop, concluding he used his gun to protect his life.

Neither officer could be reached for comment.

The department has changed its procedures, Schwartz said, so the assistant chief in charge of the Criminal Investigation Bureau has the final say on releasing a vehicle that is held as evidence in a case.

Deputy District Attorney Kent Lovern said his office would have no problem using Behning as a witness in future cases.

"We believe Detective Behning made an honest mistake," Lovern said in a statement. Honest mistake or not, Strang and another legal expert said the detective can expect to be dogged by DiMotto's ruling for years.

Strang noted that judges are paid to evaluate the credibility of witnesses. "That's a huge issue," said Marquette University law professor Daniel Blinka. "If I'm aware of this as a defense attorney, I bring this up."

Behning's testimony - and the car - could also become big issues if Carter files a civil suit or civil rights claim. And that is where everything seems to be heading.

Carter's lawyers have filed a notice with the city detailing his injuries - essentially a legal step in putting officials on notice that a suit may be coming. With two mangled fingers, the 53-year-old handyman can no longer work. His lawyers claim the burglary allegation was fabricated to justify the shooting.

"The police are covering for their own," said Brittain, the defense lawyer.

Original report here



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