Posted: Sep 08, 2015 4:51 PM EDT
Updated: Sep 08, 2015 5:26 PM EDT
By Jason Riley
LOUISVILLE, Ky. (WDRB) – A defense attorney claims a police officer in a DUI case misled a judge and was helped by a prosecutor who was “complicit in aiding and abetting the untruthful testimony.”
Paul Gold, a lawyer representing a Louisville man accused of driving drunk, made the allegations in a motion filed Tuesday.
Officer Jeff Eberenz told Jefferson District Court Judge Erica Lee Williams during a trial on Aug. 27, that he had been “cleared” of wrongdoing for allegedly giving false testimony in January, according to Gold’s motion and a video of the trial. And Assistant County Attorney Ben Wyman also told Williams the officer had been “cleared by LMPD.”
But Gold pointed out in his motion that the investigation into whether Eberenz lied while testifying in January just began on Aug. 26 and is ongoing.
“What did the prosecutor know and what investigation had he done to find the true answer?” Gold asked in the motion, filed in Jefferson District Court.
Jessie Halladay, a spokeswoman for the Jefferson County Attorney’s office, said Wyman was told by LMPD that Eberenz had been cleared and, after finding out that information was incorrect, the office has been working for the last week in preparing to ask for a hearing to set the record straight.
“At the time of the trial, we were operating under information that was given to us from LMPD, which is that Officer Eberenz was cleared of the situation,” Halladay said. “We welcome a hearing to correct the record.”
It is unclear whether Eberenz had been told by LMPD that he had been cleared before he testified. Officer Carey Klain, a spokeswoman for the office, said the department could not comment because the initial investigation is pending.
On Thursday, Gold will ask Williams to conduct a hearing to determine whether the officer lied in the recent trial against Mark Stegeman.
Eberenz was first accused of lying In a July 31 ruling by Jefferson District Court Judge Stephanie Burke, who wrote that Eberenz offered “false” testimony in a January hearing to determine whether the officer had probable cause to stop Justin Wagner for speeding – which led to the DUI charge. Eberenz testified that he had properly certified his radar gun and maintained it each shift.
However, in May, maintenance records for the radar gun showed that it had not been properly certified since April 2011, nearly three years before Eberenz stopped Wagner.
“It is almost without question that Officer Eberenz knew his statements were false,” Burke wrote. “It would be difficult to imagine that Officer Eberenz would be unfamiliar with the maintenance history of the machine which he relies upon on a regular, if not daily basis, particularly when he was so emphatic in his testimony to the contrary.”
Klain, told WDRB on Aug. 31 that the department’s professional standards unit began an investigation on Aug. 26.
The next day, on Aug. 27, Eberenz was on the stand in a speeding and drunken driving case against Stegeman, when he was asked by Gold and Wyman about the allegations made against him by Judge Burke.
Eberenz testified that “LMPD has cleared me entirely in that incident,” according to Gold’s motion and a video of the hearing.
In his closing arguments, Wyman told Williams that while there had been a question about Eberenz credibility, “I am not going to linger on this, Officer Eberenz has been cleared.”
Judge Williams took the case under submission and said she would rule on Sept. 22.
Earlier this month, the county attorney’s office appealed Burke’s decision to Jefferson Circuit Court, saying the judge was “incorrect” and that to accuse Eberenz of lying on the stand was “to misperceive” what actually happened.
“Because of a less than careful approach to the record in this case, an excellent police officer has been incorrectly and falsely accused by a sitting judge of perjury,” Wyman wrote in the appeal, asking a higher judge to reverse Burke’s order.
Defense attorney Gregory Simms, who represents Wagner, said there is no different standard for calibrating a personal radar gun rather than one issued by the department. And he has said that Eberenz’s testimony could “affect all of his existing cases. When an officer gives false testimony under oath, that negatively affects the officer for good.”
Eberenz has dozens of pending DUI and speeding cases.
Louisville Metro Police Chief Steve Conrad told WDRB in late 2013 that as part of a new policy at the time, he had put the department’s officers on notice that any violations involving untruthfulness “will likely lead to termination from this department.”
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