Reopening an embarrassing chapter in San Jose police history, an appellate panel has unanimously ruled a 2008 lawsuit against a cop who prepared a phony DNA report in a sex-assault case -- and then testified the report was true -- may go ahead after all.
A lower court judge had decided the case in favor of Sgt. Matthew Christian and the city of San Jose without holding a full trial.
The lawsuit was filed by Michael Kerkeles, the former suspect targeted in the fake document. It accuses the officer and the department of violating his constitutional rights, maliciously prosecuting him and falsely imprisoning him.
He also alleges that the city failed to train its officers on the proper use of ruse reports to avoid the risk of confusion with genuine evidence -- despite at least one previous incident and an internal memo from an officer warning of the possibility.
The department has since restricted the practice of falsifying crime lab reports. Christian is now assigned to the Internal Affairs unit responsible for investigating public and internal complaints about cops -- which Kerkeles' attorneys claim is akin to the fox guarding the henhouse. He could not be reached for comment, and a police spokesman also was unavailable Friday because of an officer-involved shooting.
The state appellate court opinion, which was published Tuesday, paves the way for Kerkeles' attorneys to take the case against Christian to trial, which they said they plan to do within six months.
"This decision will land on the desks of police chiefs all over the state as a lesson to be learned,'' attorney Tim McMahon said.
But City Attorney Rick Doyle said he is weighing whether to ask the California Supreme Court to consider reviewing the decision written by 6th District Court of Appeal Justice Franklin D. Elia, and joined by Justice Eugene M. Premo and Santa Clara Superior Court Judge Patricia Lucas.
The appellate panel stopped short of concluding Christian lied when he said he had "completely forgotten" the report was fake when he testified. Judge James Kleinberg of Santa Clara Superior Court had sided with Christian and the city after accepting the officer's explanation.
But the panel noted the "self-serving nature" of the explanation. The panel also noted the city had conceded in its brief that Kerkeles had laid out "a good deal of evidence" that either Christian or former prosecutor Jaime Stringfield "should have realized that the ruse report was fake, suggesting that one or both of them actually knew that it was." Officers generally are immune from prosecution except when plaintiffs allege their constitutional rights were violated; in this case, Kerkeles claims his right to due process was trampled.
"The court was obviously troubled by the facts in this case," Doyle conceded in a telephone interview. He said the city argued Kerkeles might have been held over for trial without Christian's testimony, undermining his claim that the ruse report created by Christian was the cause of his continued prosecution.
The case dates to a March 2005 allegation that Kerkeles sexually assaulted a developmentally disabled young woman. Her statements to police were contradictory, and a physical exam turned up no evidence of an assault.
In an attempt to get Kerkeles to confess, Christian created the fake crime lab report -- complete with the lab's letterhead. Kerkeles did not confess; he asked for an attorney. The phony report was never used as a ruse.
The Santa Clara County District Attorney's Office pushed forward, believing the prosecutor had a convincing victim to testify about the alleged assault.
But when the young woman failed to qualify as a witness because she couldn't tell a lie from the truth, Stringfield called Christian to the stand at the preliminary hearing.
Stringfield asked him about the report, and he testified that it existed and that a crime lab analyst had found semen on a blanket seized from Kerkeles' home. But there was no such analyst, and the lab did not find semen on the blanket.
For months, the trial was on hold as defense attorneys attempted to learn more about the report. When it came to light that the report was fake, the district attorney's office agreed to drop the charges.
Matthew D. Davis, another of Kerkeles' attorneys, said he will introduce proof at the upcoming trial that his client was innocent of the sex charges.
"It will be proven at trial that not only was he at work when the crime supposedly occurred, but his wife also was in her home office, steps from where the alleged rape took place," Davis said.
Stringfield has since left the District Attorney's Office to pursue a teaching career. But she remains under investigation by the State Bar, based on a complaint about her conduct in this and other cases. In 2002, an appellate court sharply criticized Stringfield's ethical conduct, ruling that her improper comments required a new trial. In 2008, the same court found she had committed misconduct in her comments in another case.
Contact Tracey Kaplan at 408-278-3482.
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