As he was testifying in court about a citation he had issued a homeless man, San Diego Police Officer Colin Governski set the scene: When he approached Tony Diaz, Diaz was sleeping in the back of his truck in a public parking lot on Mission Bay.

Diaz was challenging a citation he’d received for vehicle habitation. So the officer’s testimony that he was observed sleeping in the truck was crucial.

The problem: It wasn’t true.

The judge found Diaz guilty of the infraction. But Diaz’s lawyer appealed the case, and then the city attorney’s office found body camera footage of the incident.

It revealed Governski had given false testimony under oath multiple times about the encounter. The footage directly contradicted his description of what happened and backed up Diaz’s account that Governski approached him as he was leaving a public restroom.

The deputy city attorney on the case, Steven Hansen, notified Diaz’s lawyer and filed a motion to throw out the conviction. Hansen did not, however, alert the San Diego Police Department that Governski had given false testimony in court.


We Stand Up for You. Will You Stand Up for Us?

A spokesman for the city attorney’s office said he notified SDPD last week – after I contacted him for this story, and several weeks after the discovery of the footage.

The same officer has been in trouble before for his conduct toward homeless San Diegans.

♦♦♦

On Aug. 15, 2015, Governski and another officer, both members of SDPD’s quality of life team, arrived at a public park on Mission Bay near the Bahia Hotel, and began rousing people who were sleeping in a tent and in a camper, body camera footage shows. Eventually, Goversnki splits away and walks over to a public bathroom, and comes upon Diaz as he’s exiting.

From the outset, Governski insists that Diaz has been living out of his vehicle illegally, and that he’s been generating complaints from residents and Bahia guests. Diaz replies that he couldn’t be the source of complaints, because he had only just arrived at the park to use the restroom. Governski initially tells Diaz to consider their interaction a warning, but immediately changes his mind and issues him a citation for vehicle habitation. Throughout the encounter, the footage shows, Diaz repeats that he only just arrived at the park to use the restroom.

The same disagreement played out in Superior Court on June 3, 2016.

But Governski, on the witness stand, changed a key fact about the interaction.

While under oath, Governski said, “I contacted Tony in the back of his camper,” and “On the date of the violation on the ticket, Aug. 25, 2015, he was sleeping in the back,” according to transcripts of the testimony.

Superior Court Commissioner John Blair asked Governski directly: “When you first made contact with Mr. Diaz, he was sleeping in the back of the vehicle on the date of the violation. Is that correct?” Governski answered: “Yes.”

Diaz told the court that when Governski approached him, he’d just pulled up at the public bathroom. Governski contacted him as he exited the restroom, Diaz testified.

Diaz testimony

The body camera footage was not introduced during the trial. SDPD policy says that officers should include a note on citations indicating the violation in question was captured on camera. Diaz’s citation did not include such a note.

“I know the guy’s lying. And truly, my situation is, ‘What am I going to do?’” Diaz recalled of hearing Governski’s testimony. “I do my best to stay out of the way, stay out of trouble. I’ve had drug problems. I’ve had problems in the past. But right now, I’m making due the best I can. And for him to lie over an infraction like this, it’s like, what if it was actually something serious? How can you trust an officer like that? You can’t.”

Diaz told me he does sleep in his vehicle at night but has the permission of a local business to park in its lot, off city streets. That puts Diaz in an impossible situation, his attorney said: Because there’s evidence he lives in his vehicle, he can potentially cited any time he ventures onto a public street, even if he doesn’t actually sleep in his car in public.

Blair, the court commissioner, found Diaz guilty. He agreed to suspend $100 of the $280 fine, and to allow Diaz to work off the remaining $180 through volunteer work.

But Coleen Cusack, Diaz’s attorney, was eager to challenge the underlying law for which Diaz had been cited, the city code that says it’s illegal to live or sleep overnight in one’s vehicle. A similar law in Los Angeles was struck down by the U.S. 9th Circuit Court of Appeals in 2014. Cusack filed an appeal, arguing the law is unconstitutional.

That triggered a review by the San Diego city attorney’s office. When Hansen, the deputy city attorney, reviewed the case, he discovered body camera footage that backed up Diaz’s version of events. He filed a motion to vacate Diaz’s conviction earlier this month.

“The video is exculpatory evidence because it contradicts the officer’s testimony and corroborates Appellant’s testimony. The video undermines the officer’s credibility and removes a major pillar of the case against Appellant, an allegation that he was found sleeping in the back of his truck,” Hansen wrote in the motion.

Cusack said that when Hansen alerted her to the footage, she asked him whether he had reported the officer’s false testimony to SDPD officials. Hansen said no, Cusack said.

The city attorney’s office didn’t alert SDPD officials of the incident until last week, when approached by Voice of San Diego with questions.

“When we learned that a body-worn camera video containing potentially exculpatory evidence existed, we immediately notified defense counsel and provided her with a copy of the video,” Gerry Braun, a spokesman for the city attorney’s office, wrote in an email last week. “We filed a motion with the court to vacate the conviction and dismiss the case. Any circumstance such as this is potentially a matter to be reviewed by our Brady Committee” – a group that reviews whether officers’ testimony in court cases has been called into question.

Braun didn’t alert internal affairs or the police officer’s supervisor. Cusack filed her own complaint with internal affairs.

“I notified Lt. Scott Wahl at the San Diego Police Department today [July 25],” Braun wrote. “We expect the Police Department will review the matter and, if there is misconduct, take appropriate action.”

Wahl is an SDPD media spokesman.

“The San Diego Police Department is investigating this situation and the complaint filed on behalf of Tony Diaz. We take all matters regarding the performance of our employees very seriously and will investigate this situation fully,” Wahl wrote in an email statement.

This is not the first time Governski has been accused of inappropriate interactions with homeless residents.

In February, the city of San Diego agreed to pay a homeless Pacific Beach man $15,000 as a result of a 2016 lawsuit in which Zack Green accused Governski of harassing and illegally arresting him.

Wahl said Governski is no longer working on the quality of life team and is assigned to Mid-City patrol.

Cusack said that this case, and others she’s worked pro bono on behalf of homeless clients, has convinced her everyone facing an infraction or traffic citation should have access to a lawyer, as well as an easy way to access body camera footage.

“Every time I see a trial proceed that should have body cam evidence but it’s not being presented, I wonder, ‘Why not? Why wasn’t this evidence presented? What would it show?’” she said. “If it helps the officer, it would be shown, so it must not really be showing what the officer wants.”

    This article relates to: Homelessness, Must Reads, Police, Police Body Cameras, Police Misconduct, Public Safety

    Written by Sara Libby

    Sara Libby is VOSD’s managing editor. She oversees VOSD’s newsroom and its content. You can reach her at sara.libby@voiceofsandiego.org or 619.325.0526.

    21 comments
    ernest jackson
    ernest jackson

    What is sad is that in every city in America, cops who are chronic liars exist. Show me one police department that has not had a cop lie in court to obtain a conviction, and I will ask you what movie on Netflix was that. Texas is worst than California, and the only reason they have gotten away with it so long is because too many in the DA offices are bent on getting to a judgeship via conviction rates. Few DA's actually give a damn about the truth.

    In Austin Tx, there are police Supervisors who, when confronted with evidence that shows wrongdoing by an officer, refuse to look at such evidence and instead help the officer concoct a "better" lie to cover up any wrongdoing.

    All over this nation justice is so corrupt. Cops even have national seminars on how to make a lie( case) stick. They learn evidence tampering techniques- disguised as effective forensic methods, along with how to frame suspected criminals by planting evidence and/or DNA/fingerprints. They practice first extracting DNA from onions, then they privately collect DNA

    to extract at home- and later plant in crime scene situations when other evidence is deemed not sufficient. And the judges go right along. There is even a history of law enforcement killing other cops and/or judges who don't go along with "the program." After which, they find a Negro to blame - or try to blame. Austin Police Departments DNA lab was so corrupted and inept that some say convictions were made based upon DNA belonging to someone other than the person charged. And, it was rumored that Onion DNA was found to be a 99.999998% match to a suspect in a felony robbery case.


    Next they will be convicting based upon "chicken finger" prints.


    I was also told by a very reputable source in the federal government( on a condition of remaining anonymous), that there is a private funding source that will willingly support (for life) any police officer involved in the killing of any African- American.


    Question is: when will the rubber band  that binds injustice with justice snap? It won't.

    Texas Joe
    Texas Joe

    Perjury is the word you were looking for. Ethics violations.... FIRE this cop punk before it's too late. People wake up. Every crap cop on every testimony backing actions from their tickets will lie under oath unless there are consequences

    Gregory Hay
    Gregory Hay subscriber

    "and E. The officer in this case terminated from employment and prosecuted for perjury."

    This. 
    SO MUCH THIS.

    Gerry Braun
    Gerry Braun subscriber

    VOSD readers may be confused about the City Attorney's Office role in this case after reading this article. I'd like to enlighten them in two areas:


    1) This case was an infraction, not a misdemeanor, and so it was handled in the Kearny Mesa courtroom much as a traffic ticket would be. As anyone who has been to that court knows, there is no prosecutor -- just the judge, the defendant, the police officer and (in this case) a defense attorney. Some VOSD readers have asked why the City Attorney's Office did not review the video before trial, and that is why. We were not involved. We prosecute misdemeanors, not infractions. But we also handle appeals of all cases. The City Attorney's Office first touched this case months after the trial, in response to Ms. Cusack's appeal of the conviction. I am proud that our attorney dug deeper into this case than even Ms. Cusack had. The defense could have had access to all evidence, including the body worn camera footage, before the trial. This article does not say whether Ms. Cusack requested the video through the discovery process, as was her right, or if she reviewed it in preparing her defense of Mr. Diaz. It appears that our Office was the first to do that, and as a result we immediately notified defense counsel of what we found and then asked the court to vacate the conviction and dismiss the case.


    2) Our office did not accuse the officer of perjury though some VOSD readers are concluding that we did. The City Attorney's Office informed SDPD that our Office had filed a motion to vacate the conviction and dismiss the case, this based on our discovery of exculpatory evidence that supported the defendant's account of the events. We did not tell SDPD, and I did not say we told SDPD, that the officer "had given false testimony in court." The distinction is important. I explained to VOSD that our Office has a Brady Committee which examines such questions.


    Accurate reporting on police and government is an important service to our community. I applaud the reporters who undertake this responsibility, and I appreciate this opportunity to better inform VOSD readers.


    Gerry Braun

    Scott Lewis
    Scott Lewis moderator administratormember

    @Gerry Braun Your first point seems pretty clear in the story. Your second I don't fully understand. But to be clear, you are not saying we reported anything inaccurately. 

    Coleen Cusack
    Coleen Cusack

    @Gerry Braun


    1) This is disingenuous.  The City Attorney was delegated the authority to prosecute infractions and shares in the revenue from each fine imposed but relies on a case decision that allows them not to appear in court if they elect not to do so.  The City Attorney has decided it is more profitable just to collect the revenue without appearing in court which then imposes greater burdens on those who do show up with police being called upon to make motions at the lectern and, as witnesses, negotiating outcomes of cases with attorneys.  Either the City Attorney should show up in court to do its job or forfeit collecting revenue.


    In the instant prosecution, however, the City was served with a pre-trial motion to declare the habitation ordinance unlawful.  It is misleading to suggest the first opportunity the City Attorney had to get involved was on appeal.  They should have filed a response to my motion and appeared in court, but elected not to do so. Had they obtained the body worn camera footage in response to my motion, and dismissed the conviction then, the officer never would have had the opportunity to commit perjury.  A local court rule requires that the City Notify the court if they are not going to be responding to a motion and they failed to do that, as well. Another local court rule permits the trial court to consider the failure to file a response as a concession that the issue is meritorious but the trial court declined to do so, giving the City every possible allowance despite its deliberate absence from the proceedings.


    2)  Perjury by the officer is a felony and it would be the purview of the District Attorney, not the City Attorney, to file charges against the officer.  But Steve Hansen, Deputy City Attorney, declared under penalty of perjury, "The video contradicts the officer's testimony and corroborates Appellant's testimony because it shows that shortly after the officer's arrival at the location he contacted Appellant as Appellant was coming from the restroom.  Appellant appears awake and alert.  The video undermines the officer's credibility and removes a major pillar of the case against Appellant, the allegation that he was found sleeping in the back of his truck."   


    Perjury is defined as follows:  "Every person who, having taken an oath that he or she will testify. . . truly before any competent tribunal . . . in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, . . .is guilty of perjury." (CA Penal Code section 118.) Here, the officer testified falsely, knowing his testimony to be false, and on a material matter.  A comparison between the body worn camera evidence and the officer's testimony in court makes this obvious even to the lay person.





    Coleen Cusack
    Coleen Cusack

    @Gerry Braun


    (continued, part two)  However, the City Attorney did not need allege perjury to recognize that this officer testified falsely.  If the officer's credibility was undermined in this case, that means it is undermined in all future cases as well.  In any subsequent cast in which this officer testifies the defendant or his defense attorney should be provided with the evidence that this officer testified falsely for impeachment purposes.  As an officer of the court, the City Attorney had a duty to notify the San Diego Police Department of this officer's conduct as well as the court and defense attorney, to prevent the further injustice of permitting this officer's credibility to remain unchallenged and additional judgments of conviction to rest on an officer whose credibility was so undermined.  In permitting this officer to continue testifying in infraction cases without notifying the court, SDPD or the defendant of the officer's undermined credibility, the City Attorney participated additional injustices to occur under its watch.  


    3)  SDPD policy requires that if body worn camera evidence exists that it be noted on the face of the citation, underneath the case citation number.  See page 10, M4 of the policy here:

    https://www.rcfp.org/bodycam_policies/CA/San_Diego_BWC_Policy.pdf  There was no such reference on the citation and as SDPD officers were gradually being assigned cameras, there was no reason to know or believe, without this notation on the citation, that body camera evidence existed in this case.   I am representing these individuals for free and without compensation.  I do not have the luxury of making fruitless discovery requests when there is no basis to believe such evidence exists.  On the day of the trial and before the trial started I did ask the officer if he had body camera evidence. As best I can recall, the officer initially told me he did not and then later told me that the footage had been too dark to have been of any use.  He did not bring the evidence with him to court.  He did, however, testify that he did not have photos of my client's truck from the date in question.  Instead, he had taken photos six months later and testified in court that the photos as they appeared six months later were an exact representation of the truck on the date the citation was issued in this case. 



    Coleen Cusack
    Coleen Cusack

    @Gerry Braun (continued, part three and final)


    4)  The City Attorney did not obtain the body worn camera evidence as soon as the case proceeded on appeal.  The parties both proceeded to "settle the record" to agree on what had occurred at the trial eventually necessitating the preparation of a verbatim reporter's transcript from the audio recording of the proceedings.  Approximately nine months later I filed the Appellant's Opening Brief outlining the issue we were advancing:  the unconstitutionality of the ordinance due to its vagueness.  Thus, nine months after the appeal was initiated was the first time the City Attorney sought out the body worn camera evidence and used this evidence as justification to delay filing its response to the appeal, and then as justification to vacate the conviction and dismiss the appeal.  In so doing, the City attempted to avoid any appellate review of the unconstitutionality argument.  There was no due diligence in seeking out this evidence, instead there was considerable delay and the evidence was relied upon primarily to avoid reviewing the merits of our claim on appeal.


    5)  The body worn camera evidence further substantiates our claim that the ordinance in question is unconstitutional as it is "void for vagueness."  What facts would constitute a violation under this ordinance are unclear and do not put persons reasonably on notice to distinguish between lawful and unlawful behaviors.  What is clear from the body worn camera evidence is that the officer proceeded to treat my client as guilty without observing any facts, but simply presuming that since his truck was able to be slept in, that any time the truck was parked on city streets he would be found guilty.  As such, the ordinance lends itself to targeting a population merely for their status as homeless and not for any specific conduct delineated by the statute.  But because the statute is so vague, every time this issue manages to get before an appellate court for review, the City can manage to find some reason to dismiss the underlying violation and avoid resolving this issue as it did here.


    6)  What would I like to see going forward?  A.  The City Attorney show up in traffic court to represent the city or forfeit the profit it receives from citations.  B.  Body worn camera evidence footage to be made available to all infraction defendants prior to trial by making an appointment to view the footage and by being permitted to leave with a copy of the footage after this appointment.  C.    The cessation of criminal prosecutions against the homeless population.  D.  A clear policy in place requiring the City to promptly notify the police agency, the District Attorney, the courts, public defender and private defense counsel whenever a police officer is discovered to have testified falsely on a material matter before the court; and E. The officer in this case terminated from employment and prosecuted for perjury.

    DavidM
    DavidM subscriber

    How is it that an officer that has shown a willingness to lie in an infraction case is actually still employed as a police officer?  


    How is it that the City Attorney can have clear evidence of perjury - prior sworn testimony contradicted by video - and didn't even bother to alert the SDPD of a problem until a reporter calls?


    SDPD spokesman say they take incidents of misconduct seriously.  "Seriously" does not appear to be the correct word.

    Chris Brewster
    Chris Brewster subscribermember

    Judges tend to assume police officers to be more credible in cases of conflicting testimony. There's a reason for that. Police officers swear an oath to uphold the law as a fundamental part of their job. With that presumption of credibility comes great responsibility. Violating the trust that judges tend to offer creates the potential for undermining faith in both police and government.

    Here's a question though: If the City Attorney's Office believes the officer committed perjury, why are they not prosecuting him for doing so?

    California Penal Code 118: (a) Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury.

    This subdivision is applicable whether the statement, or the testimony, declaration, deposition, or certification is made or subscribed within or without the State of California.

    (b) No person shall be convicted of perjury where proof of falsity rests solely upon contradiction by testimony of a single person other than the defendant.  Proof of falsity may be established by direct or indirect evidence.

    joseph
    joseph subscriber

    This loser cop needs to be criminally charged and fired. Nothing short of both is good enough. I dont want another nickel of my tax dollars supporting that creep.

    Daniel Smiechowski
    Daniel Smiechowski subscriber

    I am a candidate for D2 SD CC from this area. I have lived in my District for 50 years. From the information in this article, I find it immoral and unethical for anyone to treat this man with such indignity. Who was the "They" and "Hotel" referenced by Officer?  Was it the Bahia Hotel and guests?  I believe Mr. Bill Evans owner of the Bahia Hotel on MB just contributed the maximum $550.00 to my opponent and incumbent Councilmember Lorie Zapf!  Moral and ethical City leadership starts at the top being City Hall!  The POA had endorsed and promoted Zapf last election cycle. I expect more of the same this time against me!  SAD SAD SAD !!! 

    Judith Swink
    Judith Swink subscriber

    I can't begin to express the frustration and anger I felt as I watched the bodycam video. Governski started out with an absolutely closed mind, determined to make a case against Diaz where there was no case - as the bodycam video proved. Did Governski observe Diaz climb out of the back of his vehicle as if he had slept there? No. Did Governski give Diaz any benefit of the doubt? No. He immediately decided what was what and had no interest in learning the true situation. All he had to do was to go up to the truck and touch the hood to see if the vehicle had been recently operated. If it was hot, then Diaz' story that he had only just arrived to use the bathroom would have been supported by evidence. Governski cared only about being "right". I think Diaz showed commendable restraint as he tried to get through to the officer as to what he (Diaz) had been doing. 

    Next - isn't failure to produce exculpatory evidence illegal? Diaz should file a complaint for remuneration for harassment and illegal arrest, just as the PB homeless man did. If enough of the homeless (who are sufficiently compos mentis) did this, maybe officers of the SDPD would learn that making an assumption of built absent evidence is not acceptable.

    rhylton
    rhylton subscriber

    @Judith Swink The SDPD uses and views POST training as the epitome of proper police procedures. Testilying sits at the core of the POST curriculum.


    Regrets.

    Judith Swink
    Judith Swink subscriber

    Can you explain to us what POST training is? I do get a sense of it from the first word of your second sentence, however.

    rhylton
    rhylton subscriber

    @Judith Swink The Commission on Peace Officer Standards and Training (POST) was established by the Legislature in 1959 to set minimum selection and training standards

    John Porter
    John Porter subscriber

    I'm beginning to wonder why the court assumes a cop to be a credible witness....

    Matty Azure
    Matty Azure subscriber

    That will be the last time I turn on that damn camera.

    Signed,

    Governski

    rhylton
    rhylton subscriber

    @Matty Azure You are wicked; cynically, wickedly funny. My friends at the SDPD and City Attorney's office are mundanely, banally wicked.