False witness

A DUI specialist with 30 years at the San Diego County Sheriff Department's crime lab, it was Raymond Cole's job to explain to judges and jurors how alcohol and drugs impair drivers and how the police measure levels of intoxication. That was before authorities found out Cole wasn't who he claimed to be-a revelation that could mean a sizeable number of the convictions he helped secure may be overturned.

According to a report written by Richard Debevec, a crime-lab supervisor, a mid-January audit of employee records revealed a discrepancy in Cole's résumé. Cole, who claimed to have obtained a premedical degree from the University of California, Berkeley, in 1957, had actually graduated from Berkeley with a bachelor's degree in political science. Debevec interviewed Cole and confirmed that “although he had taken numerous courses required for a premedical-studies degree as an undergraduate, his degree was in political science and that his résumé was incorrect.”

Greg Thompson, the director of forensic services at the crime lab, told CityBeat that Cole's undergraduate degree wasn't a critical part of his credentials, but “we expect absolute candor from our employees.” As a result, Cole, who retired in 2001 but was rehired to provide testimony on a part-time basis, no longer works for the crime lab, although Thompson says he wasn't fired.

“He was actually going to retire [again], anyway,” he said, “so when we took him off of testifying, he went ahead and just expedited that.”

But it's not that simple, and no one is yet sure just how big a mess Cole's allegedly faulty résumé may turn out to be. Contacted through Thompson, Cole declined to comment for this story.

Thompson acknowledged that prosecutors regularly provided Cole's résumé to defense attorneys as evidence of his background and expertise-things that tend to carry a lot of weight in DUI cases that often hinge on expert testimony and credibility.

In cases involving a person charged with a DUI who can afford a defense attorney, the lawyer may hire a specialist to refute the testimony given by the state's expert. However, in most cases, clients can't afford specialists, so their case depends on their lawyer's cross-examination of the state expert. In either scenario, the object is the same.

“If you can discredit the government in any way in a case, then you can win it regardless of the facts,” said Justin Brooks, a professor at California Western School of Law who specializes in criminal defense and post-conviction work.

Defense attorneys often attempt to discredit witnesses like Cole by attacking the foundation of their expertise, probing their education, training and experience and using their testimony in other cases to contradict current statements.

Although uncovering an inaccuracy in an expert's résumé may be gold at trial, Brooks, who also heads the California Innocence Project, which provides pro-bono legal assistance to inmates with cases in which new evidence has been uncovered, says the burden becomes much higher if the discovery is made after a verdict is rendered.

“It's very tough to get reversals,” he said, noting it's ultimately up to a judge to make that determination. “Even if you can establish that it's false evidence, you have to establish that it would have made a difference.” In the meantime, Brooks said investigators and prosecutors have an ethical duty to inform the opposition of the discrepancy.

Thompson said his office has done so by disclosing the finding of its audit and a copy of Debevec's report to local prosecutors. (The offices of the District Attorney and the San Diego City Attorney are the two agencies that prosecute DUI cases in the county.)

Earlier this month, City Attorney Mike Aguirre's office began sending letters to lawyers who may have defended clients in cases in which Cole testified. A spokesperson for District Attorney Bonnie Dumanis said her office is in the process of drafting a similar letter.

Aguirre's disclosure has created a buzz among local DUI lawyers who are looking into the matter, and Christopher Morris, who heads Aguirre's criminal division, said an unknown number of those cases may now be “open to review.”

“We knew when we sent those out that there could be an onslaught of motions and people seeking new trials,” he said. “We are prepared to deal with those and examine each of those on a case-by-case basis.”

Actually locating those cases is a different matter. According to testimony from a 2003 DUI trial, Cole estimated he'd testified “well over 4,000 times” during his career, but representatives of Dumanis, Aguirre and the crime lab all say they have no way of tracking those cases. Instead, they put the responsibility for unearthing the trail of their expert witness on defense attorneys.

Brooks said the government, not defense attorneys, should be responsible for notifying individuals in whose cases Cole testified. “I don't think it's practical or appropriate as a solution,” he said, noting that during the past 30 years, many defense attorneys may have moved, quit, retired or died.

With the discrepancy in Cole's résumé just now coming to light, defense attorneys may have missed their initial chance to discredit him, but it's his sworn testimony, forever preserved in court transcripts, that may yet prove the most damning.

According to Debevec's report, when asked how he testified in court regarding his education, Cole said “he did not testify that he had a degree from UC Berkeley and that his undergraduate coursework included premedical studies.” Debevec noted that he listened to taped testimony from one of Cole's cases, and he “did not misrepresent his degree.”

But CityBeat reviewed one court transcript that indicates otherwise. In testimony from a 2005 case, Cole-under oath-was asked about his degree.

“You put down on your résumé even though you have a bachelor-of-arts degree that you were pre-med at Berkeley,” the defense attorney asked.

“That was my major, yes,” Cole responded.

If it's proved that Cole lied while under oath in these or other cases, he could conceivably be charged with perjury, a felony. Moreover, a related conviction would severely discredit all of his sworn testimony.

“That's always the heart of perjury-that you don't know where it stops and where it starts,” said retired Superior Court Judge Victor E. Ramirez, who said he presided over hundreds of cases in which Cole testified. “Looking back on it as a judge... the only real redress that we have is that you have to prosecute Mr. Cole for his [allegedly] perjured testimony, if in fact it can be proved.”

The DA's office will have to decide whether or not to bring charges against Cole.

Ramirez and others who have worked with Cole in the past described him as a difficult witness with a history of problematic testimony. Those issues were highlighted in numerous cases in which he faced Michael Freemont, a local defense attorney who specializes in DUI cases, with whom Cole has had a longstanding professional feud, according to Freemont.

In November 1998, the pair butted heads before Judge Ramirez. Freemont accused Cole of perjury and asked that the case against his client be dismissed. According to a court transcript, Ramirez denied Freemont's motion but said Cole's testimony was “less than forthcoming” and that it amounted to “something just less than” perjury.

With crime-lab supervisors present, Ramirez expressed “serious concern about Mr. Cole,” who he'd previously admonished for attempting to take evidence from the courtroom. “The best that I can say... is that he has given less than complete... answers or less than thorough answers in his presentation.”

Citing “confidential personnel matters,” the crime lab's Thompson declined to answer questions regarding what action was taken after the 1998 case.

Last May, Freemont and Cole squared of again with spectacular results. According to a transcript of a hearing held to sanction Freemont for calling Cole a liar, Superior Court Judge Richard Mills, who previously faced Cole as a prosecutor and a defense attorney, declined to make a ruling regarding Cole's testimony but said it was “at least, intentionally misleading.... I've been troubled by his testimony more than once.... I just can't have this type of testimony again.... Somebody's got to, at least, consider that it's time to do something, if not past time.”

Mills said the DA's office had an obligation to look into Cole's testimony and, in July, at Freemont's request, the matter was turned over to the California Attorney General's office for an investigation.

In early August, Freemont received a letter from Gary Schons, a senior assistant attorney general, who wrote that after reviewing Cole's testimony, he “found little to support the trial court's remark that Cole's testimony was intentionally misleading” and “your accusation of perjury has no merit.”

Freemont wrote back, panning Schons' investigation, noting he hadn't bothered to interview Mills and requested another independent investigation, which the AG's office denied.

“Obtaining convictions based upon the testimony of an expert such as Raymond Cole is not only unethical,” wrote Freemont, “but undermines support for the criminal justice system in general and invites public skepticism and contempt for the fair administration of justice.”