CASPER, Wyo. — What happens when a law enforcement officer in Wyoming makes false statements while under oath in court? Does Wyoming have sufficient checks in place to address instances in which law enforcement officers or prosecutors abuse or misuse their position within the anatomy of state power?
A case against hemp farmers who were accused of cultivating marijuana with intent to deliver after Wyoming Department of Criminal Investigations (DCI) agents raided the Laramie County farm property in Nov. 2019 offers a glimpse into how oversight structures which aim to protect public trust in the legal system function in Wyoming.
Cheyenne-based attorney and former Laramie County Assistant District Attorney David E. Singleton was publicly censured by order of the Wyoming Supreme Court on May 19 for failing to correct false testimony provided by a law enforcement officer in a preliminary hearing in the case.
What about the law enforcement officer who allegedly provided the false testimony? That officer is Special Agent Jon Briggs, who at least at the time of the hearing was working for the Wyoming DCI. (See below for a description of the nature of the alleged false testimony).
While the Wyoming DCI has not responded to multiple requests for comment since the Wyoming Supreme Court’s censure of Singleton was announced last week, Wyoming Peace Officer Training and Standards (POST) Commission Executive Director Chris Walsh confirmed on Wednesday that POST is investigating the matter of Briggs’ alleged false testimony.
Walsh, a former Casper City Council member and former Casper police chief, said that he could not provide further information on the specifics of the matter while the investigation is active, but did provide some insight into how POST conducts investigations generally.
Walsh said that he thinks oversight when a law enforcement officer is accused of misconduct in Wyoming is “very thorough” and said that he does not think POST is “hamstrung” like some similar agencies in other states because they have the authority to take disciplinary action.
POST, which was created in the 1970s and is housed under the Attorney General’s Office, establishes training requirements for Wyoming peace officers, detention officers, coroners, correctional officers and dispatchers and issue certifications.
POST also investigates reports of misconduct and can “revoke, deny, suspend or reprimand certifications,” according to POST’s 2020 annual report. Walsh said that POST provides oversight for all law enforcement agencies in the state and that most cases which come to POST end in some type of discipline. (Further details about POST’s process below).
While Walsh expressed confidence that Wyoming has the right structures in place to provide oversight of alleged law enforcement misconduct, Wyoming House Rep. Karlee Provenza (Albany County) has concerns about how oversight of law enforcement happens in Wyoming.
She said Wednesday that it is a small percentage of officers who account for most of the misconduct complaints in Wyoming and there are obvious examples of law enforcement officers enacting their training in a way which protects the community. Provenza pointed to Town of Hanna Marshal Jeff Neimark’s actions in 2019 in response to an armed suspect who had taken a hostage at the Virginian Hotel in Medicine Bow.
In an editorial following the incident, the Saratoga Sun applauded Niemark for a number of actions he took in response to the situation, including calling for a lockdown of Medicine Bow Elementary and for using less-than-lethal force in a situation in which “the marshal could have responded with justifiably lethal force” given that the suspect “had already shown a tendency to violence and had allegedly taken a hostage.”
Provenza said she thinks it is critical that Wyoming has a credible oversight process in place to handle complaints about police misconduct so that the small percentage of officers who may engage in misconduct don’t erode public trust in law enforcement overall.
“How do we make sure that we don’t poison the well?” Provenza said.
While Briggs could potentially face consequences for his alleged false testimony during the preliminary hearing in the hemp farm case, it is unclear whether that could wind up including perjury charges and if so, what agency would file those charges.
The Wyoming Supreme Court’s order in which Singleton was publicly censured is accompanied by the Wyoming State Bar Board of Professional Responsibility’s report and recommendation of the public censure, which explains the nature of the alleged false testimony Briggs gave in the case.
When Briggs and other Wyoming DCI agents executed a search warrant of the hemp farm property, agents were shown test results of the farm’s hemp crop which showed that the THC content was less than 0.3% THC, which is the legal limit in Wyoming. The farm owners had hired Botanacor, an independent agency, to test samples of the hemp crop and obtain these results.
Those test results were also texted to a Special Agent Moon.
In Feb. 2020, the four defendants were charged with various felony charges after the Wyoming DCI obtained test results of plant material they had seized during the raid of the property. A report detailing those lab results showed that all but one sample had tested above 0.3% THC.
Briggs testified during a preliminary hearing on July 9, 2020 before First District Court Judge Antoinette Williams, according to the report and recommendation of public censure.
When Singleton asked about the test results special agents had been shown during the raid of the farm, Briggs testified that he had been shown these results on a cell phone. During cross-examination by defense attorney Tom Jubin, Briggs testified that the results he had been shown “may have actually been over 0.3% as well.”
Jubin then showed Briggs exhibits of the test results that had been shown to him and Moon which showed the THC content was less than 0.3%. Briggs testified that: “I don’t recall if these were the exact ones that were presented to me at that time.”
The preliminary hearing didn’t conclude on July 9 and was scheduled to resume on Aug. 6.
On July 24, Jubin sent an email to Briggs pointing to inaccuracies in his testimony during the preliminary hearing. In the email, he asked Briggs to correct his sworn testimony.
After receiving this email, Briggs texted Singleton: “Dude, Jubin is going hard in the paint. He is sending me emails, trying to tell me my testimony is wrong.”
Singleton responded to Briggs’ text message as follows: “He sent me an email yesterday and said the same thing. Not trying to be antagonistic just trying to ‘educate’ me. That about sum it up?”
Briggs then responded: “Oh ya. ‘I’m giving you the chance to correct your testimony.’ Is there any recourse against him for such activity? He is actually insane.”
Briggs later sent Singleton the email he had received from Jubin.
When the preliminary hearing resumed, Briggs was again called to testify. Jubin attempted to ask about the email he had sent in regard to the inaccuracies in Briggs’ testimony during the July 9 hearing.
But Briggs testified that he had not read the email: “To be honest, sir, I didn’t read your e-mail. I forwarded it to counsel.”
Wyoming State Bar Board of Professional Responsibility note in the report that Jubin had no way of knowing this testimony that Briggs hadn’t read the email was false, but that Singleton knew it was false and failed to correct it on the record.
On redirect, Singleton asked Briggs if he saw the test results on the day of the raid of the hemp farm. Briggs testified: “I don’t recall paying attention to them, no.”
Singleton then asked whether it was possible Moon showed Briggs the results but that he didn’t recall. Briggs testified: “Yes. I was trying to figure out the scene and interviews and things of that nature.”
At that point in the report, the Wyoming State Bar’s Board of Professional Responsibility state: “Thus, rather than correct the inaccurate testimony he offered at the first hearing regarding the test results, Agent Briggs continued the prevarication.”
At the conclusion of the hearing, the judge ruled that there was not sufficient evidence of the defendants’ intent to possess, distribute or conspire regarding marijuana. Singleton dismissed the charges following the judge’s ruling.
Provenza said that she thinks Briggs needs to face consequences for the alleged false testimony, saying that she thinks there is a long history of law enforcement in the United States “testilying.”
“Testilying” is a term coined by New York Police Department officers and refers to perjury committed by police officers. In an article titled “Testilying: Police Perjury And What To Do About It” published in the University of Colorado Law Review in 1996, Christopher Slobogin pointed to both a survey of criminal attorneys and existing literature showing that there is a “widespread belief that testilying is a frequent occurrence.”
“Of course, there is Alan Dershowitz’s well‑known assertion (made long before his participation in the O.J. Simpson case) that ‘almost all’ officers lie to convict the guilty,” Slobogin wrote. “Dershowitz may have been engaging in hyperbole, but his claim is not as far off as one might think. In one survey, defense attorneys, prosecutors, and judges estimated that police perjury at Fourth Amendment suppression hearings occurs in twenty to fifty percent of the cases.”
“Jerome Skolnick, a veteran observer of the police, has stated that police perjury of this type is ‘systematic.’Even prosecutors‑‑or at least former prosecutors‑‑use terms like ‘routine,’ ‘commonplace,’ and ‘prevalent’ to describe the phenomenon.”
Provenza said she thinks it is critical that there are consequences for law enforcement who lie during testimony: “When they are a main source of evidence that is extremely problematic.”
She said she also has concern in regard to agencies providing transparency and some limitations even on their own ability to do so, noting that law enforcement personnel records are tightly sealed.
“I don’t imagine that you’ll ever hear from DCI,” Provenza said.
Another concern is the close relationship between law enforcement officers who act as witnesses for the prosecution. Provenza said that there is an “inherent conflict of interest” if the system relies on the same prosecutors who rely on law enforcement testimony to get convictions to act as a check on potential law enforcement misconduct.
She added that the American Bar Association in 2020 called for states to have special prosecutors in cases where law enforcement officers are accused of a crime.
In Wyoming, she’s skeptical that any agency will bring perjury charges against Briggs for his alleged false testimony.
Provenza added that she thinks there are some limitations to the kind of oversight POST can provide. She noted that this is something people in Albany County have learned surrounding former Albany County Sheriff’s Deputy Derek Collings’ shooting of Robert Ramirez in Nov. 2018. Ramirez died as the result of the shooting.
Colling was hired by former Albany County Sheriff Dave O’Malley in 2012 after he had previously been involved in two fatal shootings and faced allegations of brutality during his time with the Las Vegas Metropolitan Police Department, as explained in an article titled “How Violent Cops Stay in Law Enforcement” published in The New Yorker last week.
O’Malley, who announced plans to retire less than a week before Ramirez’s mother filed a lawsuit against Albany County as WyoFile reported in Sept. 2020, was a member of the Wyoming POST Commission and is still listed as such on their website as of Thursday, though his name does not appear in their 2021 monthly reports and The New Yorker article reports that he has moved away.
POST began an investigation into Colling after Laramie resident Debra Hinkel filed a written complaint in Jan. 2020 which The New Yorker reported was on-going as of May 21.
Provenza said she sees problems with POST being housed under the Attorney General’s Office. When one agency is responsible for not only the certification of officers but also with dealing with misconduct and additionally with providing legal counsel for officers facing any charges, she said she thinks the state should consider whether the structure is appropriate.
“If POST can be separated in being able to make those decisions….I think that is a move in the right direction,” she said.
In addition, she said that oversight needs to include people who aren’t themselves part of the law enforcement structure in Wyoming. Wyoming statutes currently require that the POST Commission include:
- one municipal law enforcement agency representative
- one county law enforcement agency representative
- one state law enforcement agency representative
- one person “actively engaged in law enforcement training”
- two at-large seats
Provenza said she thinks there needs to be more community involvement in law enforcement oversight. She said there are some examples in communities in the state that are a move in the right direction, pointing to the Cheyenne Police Department “Force Review Board” formed under former Police Chief Brian Kozak in 2020 to include three citizens as well as Cheyenne PD members to review instances in which officers use force.
She added that the Laramie City Council has formed an “Ad Hoc Working Group for Police and Community” which is working on how to ensure transparency, accountability and oversight of police.
How is oversight handled by Wyoming POST?
Walsh, who became director in June 2019, said Wednesday there were 33 complaints about misconduct reported to POST in 2020 and that there have been 14 so far in 2021.
From 2010-2020, there were 166 total complaints brought to POST’s attention, according to POST’s 2020 annual report. When the report was published, 26 of those reported violations were still under investigation or are in the hearing process. Of the 117 investigations which had closed, 98 resulted in decertification, nine resulted in the officer, coronor or dispatcher having their certification suspended and 10 resulted in POST recommending “no further action” (NFA) in response to the complaint.
The number of complaints about dishonesty jumped from two from 2010-2014 up to 24 between 2015-2020:
When POST receives a complaint about dishonesty or other officer misconduct, the director is required to investigate, according to POST’s rules. Following review and investigation of the complaint, Walsh has several options:
- forward the complaint to the full POST Commission for formal disciplinary proceedings
- send a warning letter to the person accused of misconduct explaining the alleged violation and ask the individual to provide a statement of how they can “cure the violation”
- accept the individual’s voluntary surrender of their certification from POST
- deny recertification of the individual
- institute proceedings to revoke certfication
- close the investigation of the complaint and take no further action
When POST initiates formal proceedings, they form a docket for the case to document evidence and their findings in the matter. An example is this settlement, agreement, stipulation and order pertaining to former Evansville Police Department Officer Matt McGraw in which the POST Commission accepted McGraw’s voluntary surrender of his certification after he had plead guilty in circuit court to conspiracy/misuse of office and possession of a controlled substance misdemeanor charges.
When an officer contests a POST case against them, contested case hearings are held by the Office of Administrative Hearings pursuant to their rules. The OAH then recommend a decision to the POST Commission who then issue their order. There is an appeals process.
Walsh said on Wednesday that POST will soon begin to list on their website when they revoke an officers certification. The commission considered whether to list revocations on their website during their April 29 meeting.
Provenza said that police misconduct records should be made public.
For her part, Provenza sponsored two bills during the 2021 General Session which aimed to improve police accountability and oversight in the state. House Bill 247 would have prohibited the hiring of officers with “a serious history of misconduct” in Wyoming. That effort initially failed a third reading vote in the House but after a successful motion to reconsider, passed the House on a vote of 31-24. But the measure failed when it died in a Senate Committee. Provenza said Wednesday that while she still intends to push for such legislation, she thinks the Senate poses the biggest hurdle.
She also sponsored legislation that would have required that the public have the right to inspect law enforcement officer bodycam recordings, but House Bill 213 did not make it out of the House Judiciary Committee.
One other issue related to oversight of potential police misconduct which only the Wyoming Legislature is in a position to address is funding.
The inaccurate testimony in the case against the hemp farmers came to the attention of the court because Jubin noticed it and took steps to attempt to have it corrected. But Jubin was working a private defense attorney in the case. Would a public defender have been in a position to do the same?
In their supplemental budget request prepared for the legislature’s 2021 General Session, the Office of the Public Defender said they are “an agency that struggles to meet its constitutional and statutory obligations because of burgeoning caseloads and attorney turnover; in essence, the Public Defender is in crisis.”
“The courts appoint poor defendants attorneys,” the Office of the Public Defender said. “The ongoing challenge is to meet the growing numbers of cases in each division with the biennium budget. Criminal defendants, regardless of ability to hire an attorney, have a right to ethically competent and constitutionally effective assistance of counsel. When an attorney’s workload is not ethically manageable, the criminal defendant is denied his right to counsel.”
“As caseloads increase, the number of attorneys, investigators, legal assistants, and access to constitutionally mandated funding should do so as well, in equal measure.”
Despite this request, the Public Defenders’ budget was slashed by over $8.4 million, a 24% cut to their funding.
Provenza said the cuts to the Public Defenders Office are also cause for concern: “We don’t cut the other side of the laws’ budgets equally.”
There has been a lot of silence surrounding Oil City’s attempts for comment on the matter of Briggs’ alleged false testimony. One group that has so far been silent are the Wyoming representatives and senators in Laramie County where the case against the hemp farmers occurred.
Here are questions Oil City sent to each senator and representative in Laramie County in an email on Wednesday morning:
1. Does Wyoming have adequate structures in place to deal with situations like this? Should a law enforcement officer who provides false testimony face some sort of reprecussions for doing so? If so, what should those be? Is this something which the Peace Officer Standards and Training Commission is equipped to handle?
2. My other question is about transparency. While Singleton was censured, it remains unclear whether Agent Briggs has faced any form of reprimand. The Wyoming DCI has so far not responded to multiple requests for comment on the matter. I’ve also reached out to POST but just called/emailed them this morning so they may not have had time to do so. The Wyoming State Bar had a candid conversation with me about the matter. What should transparency look like in this instance? Was the public censure order which included the report detailing the false nature of the testimony sufficient? Or should the public be aware of any steps that have been taken in terms of Briggs’ testimony?
3. I’ve emailed all of you because you are in Laramie County where this case occurred. I’ve heard people praise some of the steps the previous Cheyenne police chief took to create oversight of law enforcement in the Capitol city. What do you think of those efforts? What, if anything, is needed in terms of civilian oversight of law enforcement?
4. Reading from the report recommending the public censure, it was ordered in part because Singleton’s failure to correct the false testimony could potentially cause damage to the legal system itself. What are your thoughts about how a law enforcement officer providing false testimony might erode some faith in the legal system?
5. As I understand from speaking with the Wyoming State Bar, this is a pretty rare situation. What does the state need to do to ensure possible instances of poor judgement or behavior on the part of one law enforcement officer (in one instance) doesn’t erode people’s trust in law enforcement who are doing their best to carry out their service to the community?
6. Do you have any thoughts about the “health” of the legal system? Is the public censure an example of the legal system functioning as intended? Is a case like this a cause of concern from your perspective?
7. What questions about a case like this should I be asking? What questions should the general public be asking? What questions should people working in the legal system be asking? What questions should you and other legislators be asking?