One judge who had the guts to stand up to lying cops

Philadelphia Police Officer Perry Betts testified that members of his Narcotics Field Unit caught Hector Tapia walking out of a Kensington house on May 17, 2006, with a loaded .45-caliber handgun, a kilo of cocaine and $1,300 in cash. Betts was not happy when Court of Common Pleas Judge Lisa Rau did not seem to believe the story.

“You put your life on the line every day, sacrificing yourself to protect the public,” he fumed to the Inquirer in 2008, after Rau found Tapia not guilty. “I was just very surprised that a person with a kilo and a loaded .45 would be let go.”

Last week, Betts was named in a sweeping federal indictment, along with five fellow officers, for allegedly beating and robbing suspected drug dealers. 

In the case against Tapia, which was not part of the indictment, Betts says that he arrived at a Frankford Avenue home with his partner, Officer Michael Spicer, to investigate a suspected drug deal. Watching from the police car, Betts saw Tapia and two other men approach the suspect’s home. Tapia then removed a dark object from his pants, which Betts “believed to be consistent with a kilo of cocaine,” before the home’s occupant let Tapia and the others inside.

When the men left nearly two hours later, another officer, Thomas Tolstoy, apprehended Tapia and found him loaded down with very incriminating items. 

“This case didn’t strike me as a very close call,” DA major-trials chief Christopher Diviny complained at the time.

Tapia, however, said the story was almost entirely false. Though police had stopped the men outside the house, the officers had not, to his knowledge, found any drugs. Tapia says he first heard the police account at his preliminary hearing. 

“That’s when I found out that they was putting that on me,” he testified. “I never been arrested in my life.”

At trial, Tapia’s lawyer, Guy Sciolla, argued that the police testimony should be probed for its credibility. 

“There’s an enormous inequity in a system that permits a police officer’s testimony to be unassailed and have absolutely no repercussions,” he warned. “No one man’s testimony should be elevated by any status in his life. It’s a charge we give regularly to our juries.”

Betts was not the first officer to have his testimony called into question by Rau. After taking the bench in 2001, she quickly became, the Inquirer reported, “one of Philadelphia’s most controversial judges — developing a reputation for refusing to believe sworn testimony from police officers and for throwing out key evidence.”  It’s a reputation that’s rare among city judges. 

District Attorney Lynne Abraham’s office, according to media reports, began to collect a “dossier” on her objectionable rulings. In 2002, she criticized Rau’s conduct as “horrible” and “grotesque,” accusing her of having an “institutional bias against police officers” and for handing out lenient sentences.

In one case, Abraham contended that Rau had not sufficiently explained her decision to suppress evidence of a handgun allegedly seized from a 23-year-old West Oak Lane man. But the two officers’ accounts of the incident differed, and Rau questioned their credibility. 

“Judge Rau and others, they show no safe haven for any citizen in the city,” Abraham told the Daily News. “Sometimes the only thing to do to get them to do the right thing is to embarrass them.”

Critics say that Abraham wanted to instill fear in judges like Rau who dared to cross her and question police.  

In 2008, attorney David Webber wrote a letter to the editor of the Inquirer, calling for Rau’s acquittal of Tapia to be respected — and delivered a succinct lesson in the ideals of American criminal law. 

“The defendant may actually have committed the crime, but he goes free because the prosecutor’s evidence was simply not adequate to convict. In a police state, such an outcome is unthinkable. The war on drugs no doubt moves us closer every day to having a police state, but Rau’s ruling means that we are not there yet.”

Richard Long, executive director of the Pennsylvania District Attorneys Association, in a recent interview said that he doesn’t “subscribe to the theory that judges are necessarily more deferential to police testimony.” But he quickly added that judges and juries are right to “look at the fact that a police officer is someone who has taken an oath to protect society. So that puts them in a bit of a different position than a lay person off the street.”

It is an oath, however, that is sometimes violated. Allegations of theft and fabrication of evidence aren’t rare amongst Philadelphia narcotics officers.

One year after Rau acquitted Tapia of drug charges in 2008, Officer Thomas Tolstoy’s narcotics squad was accused of robbing immigrant bodegas and falsifying evidence in the Daily News’ Pulitzer Prize-winning “Tainted Justice” investigation. Tolstoy, the officer who allegedly stopped Tapia, was also accused of sexual assault by three women. For hotly disputed reasons, federal prosecutors never brought charges. The DA is still deciding whether to prosecute Tolstoy on sexual-assault charges.

Judges are constrained by ethics rules from speaking publicly about particular rulings and so rarely grant interviews. Rau declined to speak to City Paper for this article. 

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Criticism of judges who are perceived as too liberal has been frequent in a city where crime is a major concern. 

In 1973, Mayor Frank Rizzo, the swaggering former police commissioner and embodiment of law-and-order urban conservatism, publicly criticized a number of what he said were too-lenient judges. He called one, Judge Lisa Richette, “Let ’em Loose Lisa.” In 1985, a Philadelphia Common Pleas Court judge was reassigned to civil court after then-District Attorney (and later Mayor and Gov.) Ed Rendell called his decision to dismiss charges against four murder suspects, reportedly because a prosecutor had to be in another courtroom, “sheer lunacy.”

Such criticisms can stick. Sometimes, perhaps, they are accurate. But they can also threaten the judiciary’s independence, says Pennsylvanians for Modern Courts Executive Director Lynn Marks. It is OK to criticize, but “that’s different from an overall demonizing of a particular judge,” says Marks. “It’s very important that we don’t threaten the actual or perceived independence of judges.”

In 1997, Abraham made national headlines when she helped block President Bill Clinton’s nomination of Common Pleas Judge Frederica Massiah-Jackson to the U.S. District Court in Philadelphia. She would have been that court’s first black woman jurist. 

Abraham criticized Massiah-Jackson for being lenient with defendants, hostile to police and callous toward victims. Much to the consternation of Republican Sen. Arlen Specter, the former Philadelphia DA who had sponsored her nomination, Senate Republicans ran with the attack.

Shanin Specter, a law partner at Kline & Specter, recalls that his father “was very surprised” at Abraham’s opposition since he “had called Lynne Abraham before he recommended her to the president” and she “had expressed support for Judge Massiah-Jackson — and then she changed her mind.” Abraham declined a City Paper interview request.

Shanin Specter says the criticisms of Massiah-Jackson were “garbage” exploited by national Republicans eager to bludgeon Clinton. 

Many, particularly in the black community, found Abraham’s attack on Massiah-Jackson infuriating. Abraham was undeterred.

In 2000, the DA condemned Judge Gary S. Glazer for sending a message that “you can get a free shooting in Philadelphia” after he sentenced a teen to house arrest for shooting a Bartram High School assistant principal.

Abraham could always rely on the media to relay her attacks. And sometimes, the media launched its own.

In 1998, Daily News columnist Dan Geringer wrote one of a number of columns criticizing judges he believed were too lenient, calling Judge Carolyn E. Temin the “Queen of Murder Lite” for handing out what he called light sentences in two killings. City Councilman Jim Kenney, who believed that Temin had given short sentences to teens who had killed one of his relatives, told Geringer that one day the judge might have an unhappy run-in with one of the “characters she keeps putting back out on the street.”

Supporters protested that Geringer had taken a select number of the judges’ cases out of context. Contacted recently by City Paper, Geringer said he thought the columns were accurate. 

“I felt, and the victims’ families felt, that judicial leniency was clearly a problem in those cases,” he said. 

District Attorney Seth Williams, who took office in 2010, has not made a practice of criticizing judges in public, and Long, of the District Attorneys Association, says he doesn’t think prosecutors have made a habit of  “speaking out against judges whose decisions they disagree with. I don’t think it happens that frequently.”

But judges often get a pass when it comes to taking questionable police at their word. Take Judge Patrick Dugan, who enraged many in 2013 when he acquitted Lt. Jonathan Josey, videotaped in 2012 appearing to punch a woman in the face after the Puerto Rican Day Parade. Despite the video, Josey claimed that he was trying to knock a beer bottle from the woman’s hand. It was later revealed that Dugan’s wife is a police officer, and reportedly attended Josey’s hearing alongside a large crowd of Josey’s police supporters.    

Experts in legal ethics have said that Dugan should have recused himself.  

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Rau was perhaps destined to anger cops and prosecutors. She previously worked as a civil rights and public interest attorney and is married to prominent civil rights lawyer Lawrence Krasner, who frequently represents people who claim to have been abused or set up by police. 

But when Abraham targeted Judge Rau, it initially seemed that the DA had overreached. Supporters rallied to Rau’s defense, and Philadelphia Bar Association Chancellor Allan H. Gordon wrote an open letter of protest. 

“Further public outcries are inappropriate” and contrary to “fairness,” he wrote. “Neither the justice system generally, nor the judiciary particularly, are well served by repeated efforts to ‘embarrass’ judges publicly.”

Common Pleas Court judges retained a lawyer to look into filing a complaint against the DA  The judges decided against the complaint after meeting with Abraham; their reasons, due to a confidentiality agreement, remain unclear. But Rau was soon thereafter transferred from the criminal bench to handle civil cases — far from the narcotics and violent-crime cases that the DA prioritizes winning. Administrative Judge James J. Fitzgerald 3rd, who authorized Rau’s transfer, denied that it was politically motivated. But many believed it was punishment for running afoul of Abraham.

“One can only hope that the transfer of Judge Rau was not forced by the district attorney and that our judges continue to act like judges and not prosecutors,” wrote David Rudovsky, a civil rights lawyer and Rau’s former law partner, in a 2003 letter to the Inquirer. He warned that great injustices can occur when judges fail to question the credibility of corrupt police officers. He pointed to the 39th District scandal, which resulted in five officers being convicted in 1995 of planting drug evidence, beating and stealing from civilians and lying in court.

“It is telling that the officers who lied later admitted that they did so with the assurance that prosecutors and judges would rarely disbelieve their testimony,” he wrote. 

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Testifying before Judge Rau, Hector Tapia insisted that he was not at the Frankford Avenue house to deal drugs. He was a barber, owned a barber shop and made weekly visits to that house to cut the occupant’s hair. And though Tapia was licensed to carry his firearm, Assistant District Attorney Jennifer Hoffman was not persuaded.

“Is the barbering business a dangerous business?” she asked Tapia at trial. “So why would you feel the need to carry around a firearm that night when going to this man’s house?”

“I always carry my firearm,” Tapia responded. “I’m in North Philly.”

Tapia claimed that he tried to show police his gun license, and that they tore it up. He also alleged other problems with the officer’s account. For one, he said that he had $1,650 on his person that night — not the $1,300 the police said they recovered. Someone had seemingly made $350 disappear.

There was also Officer Betts’ account that he had observed Tapia at the doorway from 40 or 50 feet away, down a long and narrow alley. It was nighttime, and he could not recall whether there was any lighting. Sciolla, Tapia’s attorney, presented photos taken from various angles: He said it would have been very difficult, if not impossible, to see the door from the street.

Hoffman countered that Betts was “a trained officer. He is trained to see at night.”

Judge Rau then asked the prosecutor why Tapia “would be arrested leaving the house with the same cocaine he was supposedly just to have sold to them.” 

“I didn’t say that he just sold it to them,” Hoffman responded.

“So,” Rau asked, “they were just hanging out?”

“Whether they were cutting it up that night, whether they were going to set up a bigger deal later, that is information that we don’t know and can’t speculate to because [no police were] inside the house to tell us what happened inside the house,” Hoffman answered.

Sciolla alleged that officers had fabricated seizing the cocaine from Tapia on the street because they otherwise did not have any evidence to obtain a warrant to search the home. 

“Here’s the story,” said Sciolla. “Wait until they come back out. We’ll stop him. I’ll point a guy out to you. You’ll say that kilo was in his possession. Then we’ll take him back inside and see what else we can find.” 

Police claimed to have found no drugs inside the house. But they did find strainers, straws, empty bottle of lidocaine — materials used to package cocaine. In a strange twist, they admitted that they did not conduct a thorough search of the house. But Betts did, Tapia said, take him and the man who lived at the home to the basement to privately speak to them. 

Charges against the three other men were dropped for reasons unstated at trial. Sciolla suggested that police had made the home’s resident an informant.

While Tapia and the home’s occupant did not have a criminal record, one of the other men arrested had been found guilty of possession with intent to deliver and carrying a firearm without a license in 2005, drug charges in 2007 and pleaded guilty to another drug-distribution charge stemming from a 2010 arrest. Another had pleaded guilty to aggravated assault in 2003. In October 2006, he was arrested and later found guilty of murder.

Why did they arrest Tapia?

“Because [the man who lives at the home] is in play,” Sciolla said. “[Tapia’s] not in play. They could throw him away. He’s not going to help them because he doesn’t know anything about the drug trade, so let’s put it on him. Let’s choose a lamb and let’s slaughter this one.”

Assistant DA Hoffman insisted that the officers were “just telling you what they did in their day-to-day job, which is what they are here to do, and we’re glad that they’re here to take people like him off the street who are delivering kilos of cocaine into our neighborhoods. 

“What does [Betts] have to gain by coming in here and lying and pinning something on Mr. Tapia?” she asked. “Absolutely nothing except losing his job if it’s found out that he does that.”

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Last Wednesday, Officer Perry Betts joined five fellow Philadelphia Police officers in the federal courthouse at Sixth and Market streets in handcuffs and in the custody of U.S. Marshals. Betts, wearing khaki shorts and a T-shirt, sat glumly in a jury box bereft of jurors as he watched a U.S. magistrate judge read a laundry list of indictments to the narcotics squad members. 

Betts, Michael Spicer, who was Betts’ partner at the time of Tapia’s arrest, and Officers Thomas Liciardello, Linwood Norman, Brian Reynolds and John Speiser were accused by a federal grand jury of being part of a “criminal organization” that illicitly raised funds through “robbery, extortion, kidnapping, and drug dealing.” 

Over six years, the officers allegedly pulled over suspected drug dealers and entered their homes to rob them of drugs and money, and used violence or the threat of violence against them to procure money. 

In one 2007 case, Betts and other officers allegedly dragged a man into his City Line Avenue apartment. The alleged ordeal, in which officers beat and threateningly leaned him over an 18th-story balcony, ended with the theft of $8,000 in personal items. Other alleged thefts involved much larger sums. 

On Monday, federal magistrates allowed all but Liciardello and Spicer to be freed on bail as lawyers for the six officers mounted a defense of their clients. The lawyers said that police supervisors and other law-enforcement agencies were present when some of the raids took place, and questioned the motives of those who had testified before the grand jury.

Police Commissioner Charles Ramsey transferred Betts and other officers out of narcotics in 2012 after District Attorney Seth Williams wrote a letter informing Ramsey that he would no longer call them to testify in drug trials. The officers — the subject of a wave of federal lawsuits and Internal Affairs complaints alleging excessive force, false arrest and filing fraudulent reports — were not credible. But Williams only made that decision after civil rights attorney Krasner —  Rau’s husband — accused narcotics officers of misconduct, prompting Municipal Court Judge Charles Hayden to order police and the DA to turn over records on 11 officers.

And the District Attorney’s office, as City Paper reports this week, continues to call narcotics Officer Christopher Hulmes to testify, even though he admitted in 2011 to lying on a search warrant affidavit and in open court.

Walking out of federal court after the officers’ arraignment, Krasner noted that defense attorneys had complained for years that these officers were lying, but that the District Attorney’s Office had long refused to look into the allegations of some of the city’s most “prolific officers” — frequent witnesses for the prosecution. He also complained that too many judges went along for the ride.

Krasner and others are bringing dozens of civil rights cases against the officers in federal court. It could mushroom into hundreds. The officers are being represented in the civil cases by attorneys from Archer & Greiner, a Philadelphia firm that touts its experience defending police against claims of civil rights abuses. Lynne Abraham, a partner at the firm, is one of their top attorneys in that field. Archer & Greiner did not respond to a request for comment. 

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In 2008, Rau briefly returned to the criminal bench after her exile in civil court. Police misconduct quickly became an issue once again when she presided over the case of Joel Aponte.

Aponte, shot twice in a 2007 encounter with police, was charged with aggravated assault after he allegedly pointed a gun at police. But Francis Carmen, a public defender who represented Aponte, alleged that his client was unarmed and police had shot him when he ran away.

Carmen doubted the story told by narcotics Officer Scott Schweizer. For one, Aponte was shot in the back of the leg and the bottom of the foot. And it had been previously discovered that Schweizer had a Ku Klux Klan poster on his locker (Schweizer said that another officer had placed it there). He had also been found by Internal Affairs to have lied on a police report. Rau granted Carmen’s motion to allow the poster and portions of Schweizer’s Internal Affairs files to be admitted into evidence. 

The jury acquitted Aponte, but Carmen thinks he might have been convicted if not for Rau’s ruling to admit the damning material about the officer.

“Judges have repeatedly and repeatedly disallowed for that to happen,” Carmen said. “And Judge Rau got it right. … This is an officer who’s been disciplined for lying in the past.”

In 2011, Rau uncovered another case of alleged police misconduct when she granted a new trial to Jose Medina Jr., now 45, of Reading. In 1992, Medina was convicted of stabbing William Bogan to death on a Fairhill street and sentenced to life in prison without parole. Two young brothers, Michael and Hector Toro, testified that they had witnessed Medina, drunk and brandishing a knife in a Chinese takeout spot, announce that he planned to kill someone. 

Michael, 12 at the time of the trial, vacillated between claiming that he had witnessed the stabbing, and that only his brother had. He said that he had seen the murder from inside a house, or maybe outside; that Medina had gone through Bogan’s pockets after the stabbing, and that he didn’t. And so on.

More than a decade later, both brothers signed affidavits claiming that a detective had threatened to remove them from their grandmother’s home and place them in a juvenile facility or foster care if they did not testify. In 2006, Medina filed a Post Conviction Relief Act petition seeking a new trial. Rau granted him one.

Rau said that the “tragedy [of Bogan’s death] was compounded when, in the middle of the night, a detective lacking any other evidence against Jose Medina took two young boys, already terrified after a murder in their neighborhood, coerced them and convinced at least one of them to provide false testimony against another man for a murder. Hector Toro was sentenced to a lifetime of guilt as Jose Medina serves a life sentence based on a trial that lacked the fairness that our system of justice has promised and demands.”

After a brief stint back in criminal court, Rau returned to the civil bench in 2010.It’s no one’s idea of a boring career move. She has overseen high-profile libel cases involving electricians union leader John Dougherty, powerhouse lawyer Dick Sprague and former Philadelphia Housing Authority director Carl Greene.

But the impact of Rau’s criminal rulings continue to reverberate. In May, the Pennsylvania Superior Court upheld Rau’s ruling granting Medina a new trial,  and the case is pending before the state Supreme Court. Medina’s lawyer, Norman Orville Scott, wonders how many times his client has to win his case to finally walk out of prison. 

“There’s sort of an institutional investment in a conviction,” said Scott. “It is very rare that you will find a judge who will question the credibility of a police officer.”