Friday, November 27, 2009

Police Perjury - Duane Lewellen, Colfax Indiana

To be a duly authorized police officer requires taking an oath or swearing to uphold the Constitution and the laws of the state and local jurisdiction in which one is to serve.

In his paper on the oath of office Richard W. DeShon of the St. Clair County Sheriff’s Department wrote,
"Is this oath a superficial statement made by our police officers without any understanding of what they are swearing to? Do they really know what the oath requires of them? I think most police officers as well as politicians are just reading the words without any understanding."[1]

I agree with DeShon who also states, as I have throughout my years of activism, that police officers must be held to a higher standard. I, as most of you, have never taken an oath to obey every law in the jurisdiction in which we live. We are merely subject to them. Often times Police Officers place their allegiance to obey the law before God.

A typical oath that a police officer takes may be something like this;
I, (OFFICERS NAME) do solemnly swear or affirm that I will bear true faith and allegiance to, and will obey, uphold and defend the Constitution of the United States of America and the Constitution of the State of __________, and the laws and ordinances of the City of ______________. I will faithfully and impartially discharge and perform all the duties incumbent on me as a Police Officer in the Police Department of the City of _____________, so help me God.

The American Dictionary of the English Language, define an oath as:
"A solemn affirmation or declaration, made with an appeal to God for truth of what is affirmed. The appeal to God in an oath, implies that the person imprecates his vengeance and renounces his favor if the declaration is false, or if the declaration is a promise, the person invokes the vengeance of God if he should fail to fulfill it. A false oath is called perjury."

The requirement for police officers to take an oath of office is found in the United States Constitution.
“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and the several States, shall be bound by Oath or Affirmation, to support this Constitution..."
(U. S. Constitution 1787). For purposes of the US Constitution a police officer is an officer of the Executive.

One law that each police officer has sworn to uphold is that which criminalize providing false testimony. In Indiana that is as follows;
IC 35-44-2-1 - Perjury
     Sec. 1. (a) A person who:
        (1) makes a false, material statement under oath or affirmation, knowing the statement to be false or not believing it to be true; or
        (2) has knowingly made two (2) or more material statements, in a proceeding before a court or grand jury, which are inconsistent to the degree that one (1) of them is necessarily false;
commits perjury, a Class D felony.
    (b) In a prosecution under subsection (a)(2) of this section:
        (1) the indictment or information need not specify which statement is actually false; and
        (2) the falsity of a statement may be established sufficient for conviction, by proof that the defendant made irreconcilably contradictory statements which are material to the point in question.

So, by taking the oath to speak "the truth, the whole truth and nothing but the truth" which is administered to each affiant in a judicial proceeding an officer is subjecting himself to a charge of perjury if he makes contradictory statements.

Can we ever trust police officers to tell the truth? Let me first show you the testimony of a police officer who is a liar. Colfax Indiana Marshal Duane Lewellen lives in Thorntown Indiana [111 North Front Street] and acts as a reserve deputy for that town.

Lewellen was summoned to my home by former Thorntown Town Council President Gary Jones about a sign in my yard that read "Thorntown Council Meets Here Because They Are Full of Sh . .". The sign was accompanied by three toilets and a fiberglass boat shell. This was in response to the town's failure to keep emissions in the sewage pond within state mandated levels for the prior two years.

Upon arrival Lewellen said he was asked to request that I remove the sign. I told him that it wouldn't happen. He told me that he supports the message and my right to express it. He further told me that he didn't expect for me to remove the sign and that there was nothing illegal about it. The next day the town filed a lawsuit against me alleging that the sign violated a building code ordinance by being dangerously constructed.

At a trial on a different issue Lewellen was called to testify and the attorney for the town, Carlyle Gerde, questioned him about that sign. On 12 October 2007 Lewellen testified in that other matter. Upon cross-examination by me the following exchange occurred;

SHOWALTER: And what did you state to me was the reason for coming down there to discuss the sign?
LEWELLEN: I requested that the sign be taken down because of the profanity on it. I just asked you to remove the sign and take the display down due to the festival and the complaints we'd received.
SHOWALTER: And were the complaints in the nature of any one having been injured by that sign or feeling that they were in any threat of injury from that sign?
LEWELLEN: Not that I was aware of, no.

From this exchange you can see that in 2007 Lewellen was clear that the reason that he came to my home at 11:00pm on 23 September 2006 was because of the message on a sign and that no one had complained of the sign, which was well within the boundaries of my property, having been perceived as a danger.

Earlier I had publicly challenged Lewellen about what he said. He responded by sending this message to me:
"Jeff Woodard may have been altering the truth in court that day but I (Duane Lewellen) told the Judge evertything as I had recalled it to happen, I am sorry that you don't see it that way. I, as an unpaid police officer for the Town of Thorntown, try my best to approach every situation the same and handle every call fairly with no prejudice. I am sorry if you don't feel that way."

Now let's examine what Lewellen has to say in an affidavit filed with the United States District Court for the Southern District of Indiana in the civil rights lawsuit filed against him for conspiring to violate my civil rights.

"4. On or about 23 September 2006, while on duty as the deputy town marshal of Thorntown, I entered upon the premises of the plaintiff in this cause, Stuart Showalter, and orally requested, but did not demand, that he remove the signage display on the lawn of his premises next to the sidewalk. I did not advise Showalter that he had a right to maintain the signage display.
5. The signage display appeared to be structurally unstable and abutted a public sidewalk, including an unsightly stripped down junk motorboat, and displayed profane and defamatory statements."

It is clear that Lewellen is now changing his position as the tides of litigation require. It is now his defense that he was upholding public safety by requesting that a sign be removed. Prior to the civil rights lawsuit though it was his position that the sign offended public decency because of the message.

What really offends decency is that a police officer would not demand that an alleged dangerous structure be removed. Can you see Lewellen on New Year's Day? "Excuse me, would you please stop firing that gun into the air? The bullets could land on someone and kill them. Well, thanks for considering my request. Happy New Year."

For this reason I will be making a complaint to the US Attorney because the untruthful statement was made to the US District Court. The lawyer preparing the perjured document, Michael Parkinson, will also be complained of as a inducer of the crime. I have a billing statement that Parkinson sent to former Thorntown attorney Carlyle Gerde that shows Parkinson billed for reviewing the transcripts in which Lewellen's statements appear.

Because it has been conclusively established that Colfax Marshal Duane Lewellen provided falsified testimony under oath in this case then his testimony in any other case cannot be trusted. Therefore, anyone who has been accused of an offense by Lewellen may now challenge his accusation. If a citation was issued or a ticket paid, a plea agreement was made or a finding of guilt was returned at trial that case can now be reopened.

[1] Richard W. DeShon, Police Officers oath of office and code of ethics; a question of knowledge, March 31, 2000


Indiana Custodial Rights Advocates

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1 comment:

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