New York Detective Charged with Faking Lineup Results
By JOSEPH GOLDSTEIN
FEB. 27, 2018
A New York police detective was arrested on Tuesday on federal perjury charges after prosecutors concluded that he had fabricated evidence in a carjacking case.
Detective Michael Foder, center, leaving court in Brooklyn on Tuesday. Credit Victor J. Blue for The New York Times
The charges against Michael Foder, 41, who had been assigned to the detective squad in the 70th precinct in central Brooklyn, are the latest sign that perjury remains an ongoing problem within the New York Police Department. Last month another detective, Kevin Desormeau, was convicted in Queens of falsely testifying about having observed a drug deal after a jury found that the detective had made up the story to cover up a dubious arrest.
In the case on Tuesday, Detective Foder is accused of doctoring a photo lineup to persuade a judge that a victim had been able to identify two suspects in a carjacking. The charges are considered particularly troubling because they involve accusations that a detective tampered with witness identifications.
Erroneous identifications by witnesses have been a leading cause of wrongful convictions.
In the past decade, the New York Police Department has taken steps to try to prevent such misconduct. Among other requirements, detectives are supposed to follow a detailed set of instructions when conducting lineups. They cannot chat with witnesses while showing them photos or lineups, but instead should hew to a script intended to prevent the detectives from improperly influencing the result.
Still, the charges against Detective Foder suggest that the safeguards may not always be enough. The suspected fabrications were not caught by Detective Foder’s supervisor, or the defense lawyers who scrutinized the evidence. Instead, they were spotted by a prosecutor, J. Matthew Haggans, who was taking another look at the case file as he prepared to write a brief describing the strength of the evidence.
The case involved a 2015 carjacking in Brooklyn, in which a gunman and two accomplices forced a livery cabdriver out of an S.U.V. and stole the vehicle.
The driver, Orhan Polat, was initially able to identify a person he thought was the gunman when he was brought to a station house to look at photographs of teenagers and men who fit the description of Mr. Polat’s assailants. But Mr. Polat did not recognize anyone who looked like the other two men involved in the carjacking. In the weeks that followed, the police focused on two additional suspects based on an anonymous tip and fingerprint analysis.
In a 2016 court hearing in Federal District Court in Brooklyn, Detective Foder testified about what happened next. He prepared two photo lineups — one for each suspect. Each one consisted of the suspect’s mug shot printed on a sheet of paper, alongside mug shots of five “fillers” — people of vaguely similar appearance with no connection to the crime. The hope was that Mr. Polat might recognize the suspect’s photo and pick him out.
That is exactly what happened, Detective Foder testified, explaining that Mr. Polat had gone to the station house on two different days to view the two photo lineups.
Detective Foder had documented these meetings, including the date each photo lineup was administered. On each photo lineup, a signature appears beneath the suspect’s mug shot marking it as the photo the victim selected.
The suspects were charged in the carjacking. The photo lineups were the main evidence against them.
But those lineups turned out to be fabrications, investigators said. This discovery was made when Mr. Haggans, the prosecutor, realized that many of the mug shots used in the lineups were not available to Detective Foder at the time he claimed to have put the lineups together. The reason? They had yet to be taken.
A prosecutor discovered that the many of the photos Detective Foder said he had shown the victim were taken a month after they met.
The paperwork included the date of each mug shot, and most of the “filler” photos were taken after the dates the victim had supposedly viewed the photo array.
The photo array that Detective Foder claimed to have shown to the victim in November had photographs with December dates. Most of the photos from the February lineup had March dates.
An indictment unsealed on Tuesday charges Detective Foder with perjury and obstruction of an official proceeding.
“Our justice system relies upon the absolute integrity of our law enforcement officers and, while the vast majority of officers uphold that standard, we will not hesitate to act when one does not,” Richard P. Donoghue, the United States attorney in Brooklyn, said in a statement.
The indictment accuses Detective Foder of having “falsified documentation relating to the purported identifications made by the victim” in the carjacking case.
At an arraignment on Tuesday in Federal District Court in Brooklyn, a lawyer for Detective Foder entered a not-guilty plea on the detective’s behalf. Detective Foder was released on bail.
Without addressing whether the photo lineups were fabricated, Detective Foder’s lawyer, James Moschella, said the officer investigated the carjacking “in good faith.”
“I don’t think there is any indication he wasn’t acting in good faith investigating the case,” Mr. Moschella told reporters after the court hearing. Mr. Moshella said he expects Detective Foder to be suspended from the Police Department for 30 days, and return to work in some capacity while the case is pending.
The carjacking charges involving Mr. Polat’s vehicle were dropped against the two men who had been arrested on the basis of the photo lineups — Mardoche Petitphare and Rayvaughn Williams — when they pleaded guilty to an unrelated crime: the attempted robbery of a fast-food restaurant.
The police commissioner, James P. O’Neill, said the people of New York “expect the highest levels of integrity and truthfulness from our police officers, who swore an oath to uphold the fundamental principles of our city, state, and nation.”
He added, “The detective charged today broke that oath by willfully giving false testimony, an act that makes the job of every other police officer more difficult.”
||Truth in Justice