Forgery . . . and Silence . . .

This story in the O-D, and earlier postings on UticaSux got my attention just before the election. They raise concern about the tactics of the people we pay to enforce and uphold the law. Even more concerning is the failure of local officials and the Oneida County Bar Association, now that they have been made aware of the incident, to publicly call for an investigation. Fear of retribution, perhaps?

Per the O-D:

A fake DNA report created by Utica police investigators last year to pressure a suspect into confessing has raised questions about whether some investigative tactics go too far. . . . “I told him that I believe what was done was an investigative tactic that was totally unacceptable,” McNamara said recently. “It rose to a level that would violate the principle of fairness, and that tactic should never be used again.” Pylman agreed. “If you feel that strongly about it, we won't do it anymore,” Pylman recalled telling McNamara.

So, it is undisputed that a "fake DNA report" was created by Utica police as an "investigative tactic."

What a tactful way of putting it . . .

Local attorneys and officials had better brush up on their Penal Law. It's written in plain English, and there are few elements, so even they should understand.

 PENAL LAW TITLE K, OFFENSES INVOLVING FRAUD, ARTICLE 170, FORGERY AND RELATED OFFENSES:

§ 170.05 Forgery in the third degree.

A person is guilty of forgery in the third degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument. Forgery in the third degree is a class A misdemeanor.

The fake lab report is a "written instrument" as that term is defined in PL §170.00 (1), and the intent to deceive the suspect is evident from how the instrument was used.

The "investigative tactic" appears to have been the crime of forgery -- and (at least) a misdemeanor.

Although investigators did create a phony DNA report in September 2006 to indicate a match with Wright's DNA, they did not falsify an official document, Pylman said. He also emphasized it is not against the law for police to lie to suspects.

Although a state lab report would seem "official" to most people, there is nothing in the law that requires the forged item to be an "official document," so Chief Pylman's defense is irrelevant.

“They did what any good cop would do, but they pushed it a little too far,” Pylman said of his investigators. “But what's got to be realized is that they did not have any malicious or evil intent.”

Whether the intent was "malicious" or "evil" is irrelevant because the penal law does not require "malicious" or "evil" intent. What it requires is only an intent to deceive -- and that clearly was what was intended here.

McNamara at first was concerned investigators may have committed a forgery by including a forensic scientist's signature on the last page of the falsified DNA report, he said.

But he determined police never presented the signature to Wright as a means of authenticating the report, he said. Thus, in his mind, no crime had been committed.

The lack of a signature appears to be in dispute. O.C. Public Defender LeLand McCormac certainly thought there was a signature:

“The fact that police officers would tamper with an official document … signed by a forensic scientist, and use such in a vain attempt to elicit a confession by (Wright) demonstrates outrageously deceitful, manipulative and coercive conduct shocking to the conscience and undermining the public's faith in the integrity of … our criminal justice system,” McCormac wrote in the Feb. 8 document.

But there is no requirement in the law for the forged item to contain a signature, so DA McNamara's defense is also irrelevant.

So we clearly have a crime that is at least a misdemeanor that has been committed. But it may actually be worse . . . a lot worse.

§ 170.10 Forgery in the second degree.
A person is guilty of forgery in the second degree when, with intent
to defraud, deceive or injure another, he falsely makes, completes or
alters a written instrument which is or purports to be, or which is
calculated to become or to represent if completed: . . .

3. A written instrument officially issued or created by a public
office, public servant or governmental instrumentality; . . .

Forgery in the second degree is a class D felony.

Here is where the "official" nature of the instrument and whether or not it contained a signature become important: when we look at a forgery as a "felony." A state police lab report would seem to meet the criteria of an "official" document under §170.10(3). A "signature" would be evidence that the document "purports" to be an official document. As indicated above, the O-D article contains enough information to suggest that these things were also present.

There is possibly more than forgery. How many hands knowingly dealt with the falsified report, used the report, and or directed its use? There are also crimes of possession specified at both the misdemeanor and felony levels. From the text of the penal law Article 170, how many can you identify that may have been committed here?

A misdemeanor is clearly evident and is bad enough. A felony is worse. A felony committed by a government agent as part of his or her official duties is outrageous. The situation suggests that several people may have been involved, and that both forgery and possession of a forged instrument may have been committed.

The reputations of Utica and other police agencies, manned by many good, brave, and noble men and women, are tarnished by such behavior.

An investigation is needed, all involved need to be identified, culpability needs to be determined. . . .

And some heads need to roll.