Expert: Robin Sexton - 6/18/2008

Question
Hello.  My boyfriend was arrested for assault w/a deadly weapon, threats/assault and reckless driving.  The thing is, I saw what happened and the cop is lying!!!  I was in my vehicle behind my boyfriend (in his truck) pulling out of my work.  An SUV cut me off and pulled right behind my BF.  We were all doing the speed limit (25mph) and all of a sudden the SUV swerved around my BF almost hitting his truck and whipped back in front of him making both of us brake.  We went about a city block until a stop sign.  My boyfriend pulled up on the side of the SUV and the 2 drivers had a quick word then my BF took off down the side street.  When he took off, his truck tires threw up some gravel and hit both the SUV and my windshield.  The SUV kept going down the road (I was still behind him) and my BF was no where in sight.  I was behind the SUV and when he got to the end of the road he pulled across the crossing road, pulled over and I saw him get on his phone.  Now, my BF was still no where in sight at this point.  I pulled over a little ways in front of the SUV and sat there for a minute.  I was worried the SUV was waiting for my BF to continue on his path.  I still didn't see my boyfriend anywhere so I decided to meet him at home.  I figured he just wanted to get away from the SUV and went a different way.  The whole time I was driving away the SUV was just sitting there....waiting it seemed.  I went a couple miles and my gut told me to turn around and make sure my BF was okay.  The SUV was driving erratically and just plain creeped me out.  When I turned around and got about 3 blocks from where the SUV sat, I saw my BF's truck pulled over on the side of a road and the SUV was there with like 5 cop cars.  Turns out the SUV was owned and driven by an off duty Carson City, NV cop.  When I walked up to the cops one of them told me that my BF messed with an off duty cop.  I tried to tell him what happened but he told me to leave. That I wasn't wanted there.  *Even though I was a witness??  Anyway, when I walked by the SUV the cops wife was getting their little boy out of the back of the SUV and she was smiling.  Needless to say, my BF was arrested - truck impounded as evidence.  So, a public defender was assigned and we had our first court date.  The crooked cop was the only one to get up on the stand that day.  Every word that came out of his mouth was an out and out lie.  He said that my boyfriend was driving right at his truck trying to t-bone him, run him off the road, I mean whatever he could think of he said.  I was there in the location the cop was saying this happened in and that's the time and place where my BF was NO WHERE around!!!  Then he brings in a little baggie of rocks and says it's evidence.  Even though the police report says "no visible physical damage" to anyone in the SUV, the cop admits he went home, found rocks in the child's seat, took pictures and measurements of the rocks and booked the rocks into evidence...ON HIS OWN!!! Question #1 - Is that legal?  Can an off duty cop book his own evidence that no one else saw into evidence on his own case?  I find it hard to believe but the judge let him put the rocks in the case.  Question #2 - They added charges - child abuse & child abuse w/neglect.  The cop said (2 weeks later) that his son now has a red dot on his forehead that he believes came from a rock.  What is that!!!  He "believes"? His convenient rocks?  Is there anything legal about any of this?  So, my boyfriend is on house arrest with an ankle bracelet.  Cops went to his work a couple weeks ago and arrested him.  They said he left a life threatening voice mail on the cops answering machine at his house.  When they got him to the S.O. they listened to the tape with the crooked cop and they knew it wasn't my BF.  They let him go.  Question #3 - Is that considered harassment?  It was clearly a set up.  **  We wanted to get his wallet and house key out of his truck.  The Pub. Def. office said that the DA wouldn't release anything from inside the truck because it was being held as "evidence" but we found out like a week ago that the truck was sold by the Tow Truck place.  The DA is saying that they are not responsible for the truck being sold or anything.  Question #4 - If they were holding the truck as evidence then wouldn't they be responsible for the truck and everything in it?  We are going to sue the tow truck co. but can't we sue the DA's office too? Well, I think I have given you plenty to deal with at the moment.  Any help, advice, information you could offer would be greatly appreciated as we're not getting anywhere with anyone who is supposedly supposed to help us.  Thank you very much!!!

Answer
Melissa,

Wow, lots of things going on.  I regret your are having these problems.  I will try and answer some of the questions but unfortunately you have some real serious legal issues that you would be best served by an attorney.   Public defenders are overworked and underpaid.  I also realize that private counsel is very expensive. i do wish you luck and fair treatment.
Question 1, evidence is evidence the question is to the relevancy and the credibility of the evidence.  You don't say but i am going to assume that the off duty officer belonged to the same dept as the arresting / investigating agency.  so the logging of evidence would not be improper.  questionable and easily attacked by the defense yes.  The final determination will be with the court or the trier of fact.
Question 2, charges can be filed at anytime that the prosecutor believes sufficient information has been brought forward to prove the case beyond a reasonable doubt.  So yes it is legal.  Again it sounds like the prosecutor is piling on in hopes that in plea negotiations an arrangement will be reached to drop certain charges in exchange for guilty pleas on others.
Question 3,  it could be harassment or even a false report however you would have to prove that the "crooked cop" arranged or knew the phone call was false.
Question 4, your suit would probably not be against the prosecutor. Instead i would look at the police agency.  They are the ones that are responsible for the welfare of evidence kept in their custody.  They have the obligation to notify the owner when the evidence is no longer going to be held. Once notified then the obligation is on the owner to retrieve the property.
You sound like a very credible witness yourself.  However what appears to be going on here is witness's canceling each other out.  Your boyfriend and the cop cancel out, you and the officers wife cancel out.  I presume the kid won't testify.  If you can find another witness, not connected to either you or your boyfriend, that would be a big help for you.  Another thought, I will assume that everything you have written is the truth.  If it is you could consider the possibility of your boyfriend taking a polygraph on the issues.  Most police agencies can arrange this, you would work through your defense attorney.  It could even be arranged so that it is not the same agency as the officer works for such as the county or state.  What this would cause if you boyfriend passed is a lot of pressure on the officer to also take an impartial test.  Most prosecutors put a lot of credibility on a properly run test.

I hoped i helped at least a little

Good luck

robin