Tuesday, March 29, 2005 | 10:57 a.m.
The police officers testified that they found drugs in Mark Lilly's car. They neglected to mention that the drugs were put there by a police officer.
For that, an independent review board recommended that the two officers be fired. But last week, Metro Police announced they would instead be suspended without pay for an undisclosed length of time -- a decision that has infuriated the American Civil Liberties Union.
"This case should shake public confidence in the entire criminal justice system," said Gary Peck, executive director of the ACLU's Nevada chapter.
"Here we have a case where the police planted evidence in a criminal case and then stood mutely by while it was used against someone. It should raise very serious concerns that our state's largest law enforcement agency is one that does not believe that planting evidence is a fireable offense."
The Citizen Review Board last month recommended that Officers Kevin Collmar and David Parker should be fired for their incomplete testimony at Lilly's preliminary hearing.
Lilly had just been arrested for trying to sell fake drugs to a group of police when one of the officers decided to give his police dog some practice sniffing out real drugs.
The K-9 officer, David Newton, hid some unmarked drugs in the car so the dog could find them. Then he left the drugs in the car. And somehow, the real drugs wound up as evidence against Lilly, setting him up for much harsher penalties than those for mere fake-drug dealing.
"This case was like a comedy of errors," said Andrea Beckman, the review board's executive director.
What offended the board was not the planting of the drugs, which appeared to be an honest mistake, she said. Rather, it was the fact that Collmar and Parker never mentioned in their testimony that the drugs weren't Lilly's.
To the review board, "their omission of the facts was considered to be lying to the court," Beckman said.
In its report, the panel said the officers should be fired because their actions went beyond mere neglect and constituted willful misconduct. "They make good officers look bad," the report stated.
Sheriff Bill Young almost always follows the review board's recommendations, Beckman said, but he is not required to.
"It is within the purview of the sheriff to recommend whatever he thinks is appropriate," she said. "He normally follows our recommendations, so if he didn't, I'm sure he had good reasons for it."
Metro Deputy Chief Mike Ault, head of the internal affairs division, said the police department's internal investigation "simply did not find" that the officers' omissions amounted to lying.
The officers did have a duty to ensure that the prosecutor on the case knew about the misplaced drugs, and they failed to fulfill that duty, Ault said. But that "mistake" didn't merit termination.
"This police department lives and dies by its reputation, and the good news I believe out of this is that we had the ability to investigate the charge," he said. "I am very comfortable that we reacted organizationally to fix a couple of blind spots in our procedures."
The case has led to two notable changes in police policy. First, when police file paperwork to dismiss charges, as the K-9 officer did, a new procedure will ensure the forms make it to prosecutors' attention.
Second, confiscated drugs Metro uses for training must now be clearly marked as police property to avoid mix-ups.
But Peck said the failure to fire the officers made not just other officers but the entire system look bad.
"I'm a deep believer in second chances, but this isn't some minor mistake," he said. "This goes to the heart of the integrity of the entire criminal justice system.
"This case brings into question whether people are being prosecuted and put in prison on the basis of false statements and misleading evidence."
Public Defender Phil Kohn said the district attorney's office should be investigating the crimes the officers might have committed, such as planting evidence or giving false testimony.
"My first question is, what is the district attorney going to do about it?" he said. "Someone should investigate it, and if Metro's not investigating it the FBI should."
District Attorney David Roger said the officers would not be prosecuted.
"We reviewed this case for criminal prosecution, but based upon the facts as presented to us we didn't feel we had sufficient evidence to prove beyond a reasonable doubt that a crime was committed."
The officers' actions, Roger said, appeared to be "sloppy police work -- that doesn't rise to the level of a crime."
"I trust Sheriff Young to police his officers," Roger said.
Peck said Roger ought to be screaming the loudest about the officers' actions.
"The district attorney, I believe, has an obligation to step forward and make sure that those officers are held accountable, to say that this is simply not going to be tolerated," Peck said. "Why is the district attorney's office not doing anything about it? The answer is because the district attorney's office is incapable of independent judgment."
Peck cited as another example a lawsuit the ACLU has filed against the police department for a case in which police guards at the county jail allegedly threw large illegal explosives -- M-80s -- at inmates.
Metro did not dispute the facts of the case, but the officers involved were not prosecuted. Following a recommendation by the Citizen Review Board, they were suspended without pay.