Testilying'; Investigations Bring an Old Police Practice New Scrutiny
By JOE SEXTON
Published: May 7, 1994
On June 22, 1993, Justice Jeffrey Atlas of State Supreme Court in Manhattan asked John
Rossi if he had anything to say before the Justice announced his verdict. Mr. Rossi, a New
York City police officer, chose to say nothing.
What followed was a 56-word decision concluding that Mr. Rossi was guilty of perjury in the
first degree for lying to a grand jury over an arrest he had made for illegal gun possession -- in
part to cover a lapse in police procedure.
The brief, blunt statement ended his career.
It also tarnished a police department that would soon become embroiled in a range of
corruption scandals and brutality investigations.
Mr. Rossi's conviction, say prosecutors and investigators looking into police corruption, is an
example of what they fear is the most widespread form of police misconduct facing the
criminal justice system. They say perjury -- nicknamed "testilying" within the department -- is
rarely prosecuted, often condoned by superiors and an intrinsic part of the police culture.
But to the police community, the prosecution of Mr. Rossi, 29, who was sentenced to five
years' probation, was wrongheaded and overzealous. The conviction, they say, cost a good
cop his job, failed to take into account the challenges facing today's police force, and
threatened to damage the dedication and effectiveness of police officers working on streets
overloaded with guns, drugs and violence.
"While we deny Officer Rossi did anything wrong, the most he's been accused of is
overzealous behavior," said James Lysaght, a lawyer for the police union, who is helping to
prepare Mr. Rossi's appeal. "The ripple effect of prosecuting Officer Rossi on good police
officers seems all too obvious."
The events that led to Mr. Rossi's conviction began on the night of Dec. 7, 1991. Officer Rossi,
near the end of a midnight tour in the 34th Precinct, was one of four officers who arrested four
men for possession of a .357 magnum handgun they found inside the men's car, which the
police had pulled over because the driver appeared to be intoxicated. The Second Gun
The four suspects were taken to the Washington Heights station house and processed on
charges relating to the gun. But later, officers starting their day tour discovered a second gun,
a .25-caliber handgun, in the back of Mr. Rossi's patrol car and alerted him to it.
According to prosecutors, Mr. Rossi then filed another arrest report, physically abused two of
the prisoners to force someone to admit to possessing that second gun and, on Dec. 13,
testified before a grand jury that the gun had fallen to the floor of the patrol car as he had
removed one of the prisoners and he had recovered it.
Luis Mora, 35, one of the men charged for the .357 magnum, was indicted for possession of
the second gun, and faced a possible minimum prison sentence of two to four years. But all
the indictments were dismissed after Mr. Rossi's conviction.
Prosecutors, who have never offered a theory about where the second gun actually came
from, asserted that Mr. Rossi had several motives for lying. One, it meant another arrest and
possibly overtime pay. Two, it would cover up a procedural lapse by Mr. Rossi and his partner
-- all officers are required to check their patrol cars for contraband after transporting prisoners
and at the conclusion of a tour -- that might have resulted in disciplinary action. Mr. Rossi had
been given a handful of minor disciplinary reprimands during his police career. The State
Makes a Case
Mr. Rossi's path to ruin began when James Burke, the Assistant District Attorney handling the
prosecution of Mr. Mora and the others, uncovered discrepancies in testimony and evidence
as he tried to piece together cases for both guns. Mr. Burke's unease led to an investigation by
the office's official corruption unit.
"John Rossi lied about what he had considered a legal nicety," said Daniel Castleman, the
chief of investigations for the Manhattan District Attorney's office and the man who had
approved the prosecution of Mr. Rossi. "He figured no harm, no foul. But that thinking does
nothing short of stand the criminal justice system on its head."
Mr. Rossi, who had made 330 arrests since joining the force in 1986, has said he is not guilty.
He testified at his trial that after noticing the second gun, he locked his patrol car, considering
that to mean "recovered."
Aside from probation, Mr. Rossi's sentence includes a $5,000 fine and orders to perform 150
hours of community service. He has, he says, had to take a job as a deliveryman in West
Hempstead, L.I., where he lives. His children -- age 1, 3 and 5 -- are without medical
insurance, he says. His debts total more than $8,000. 'I Never Turned My Head'
No comfort are his commendation for heroism -- he helped rescue a colleague from a
shootout -- and 18 awards for meritorious police work -- he had delivered babies more than
once in Washington Heights and had saved the life of a premature baby, administering CPR
"from the Brooklyn Bridge to Mount Sinai Hospital."
"I tried to be the best cop that I could be," Mr. Rossi said. "I never turned my head."
Prosecuting people for perjury is unusual. Prosecuting police officers for it is even rarer.
Brooklyn District Attorney Charles J. Hynes has prosecuted only one officer in his more than
four years in office. Manhattan District Attorney Robert Morgenthau's office has prosecuted only
one officer other than Mr. Rossi in the last three years. John Ryan, the chief of investigation for
Queens District Attorney Richard Brown, said he could recall no such perjury prosecution
since Mr. Brown took office in 1991.
Justice Atlas, who declined the prosecution's request for the maximum prison term of two to
five years, did not spare Mr. Rossi at his sentencing.
"That Mr. Rossi has never gone out of his way to harm an innocent man is apparently true,"
Justice Atlas said. "The defendant believed that Luis Mora was guilty. The defendant, though,
took a course which is clearly not approved by us. It was criminal. It was perjury. It is
And it is, according to officials with the Legal Aid Society, a practice that goes on frequently and
mostly without sanction in the city's criminal justice system. Robert Baum, the citywide head of
Legal Aid's criminal division, says the police regularly invent witnesses, tailor their testimony
to meet constitutional objections, and alter arrest records.
"And prosecutors and judges wink at it," Mr. Baum said. The Perfect Perp
In his closing argument, John Dormin, the prosecutor who tried the case, said: "This perjury is
monstrous because the lie seems like the truth. Luis Mora looked guilty to John Rossi. He
dressed guilty. He had a record of guilt. Luis Mora is the perfect fall guy.
"John Rossi knew that after all those years of working with assistant district attorneys, of
testifying before a grand jury, testifying before judges, that he would have no trouble selling a
guy like Luis Mora up the river. In his arrogance, he believed no one would believe Luis Mora's
word against John Rossi."
The trial was an event. Police officers and supporters crowded the courtroom. Officers from
the 34th Precinct met with Mr. Rossi's police union lawyers before the officers took the stand
as prosecution witnesses, and the two officers who discovered the second gun gave
conflicting testimony about who had gone to inform Mr. Rossi. A minor riot broke out at the
announcement of the verdict.
Prosecutors suggested after the trial that all the officers, prosecution as well as defense
witnesses, had likely perjured themselves or tailored their testimony. One central witness was
an assistant district attorney who testified that Mr. Rossi had admitted his oversight
concerning the second gun in a casual conversation weeks later. Although no charges were
filed, the judge had said at the outset that Mr. Rossi's partner, Officer Anthony Tetro, had likely
engaged in witness intimidation in the days leading up to the trial. Another Life
The effect on Mr. Rossi has been colossal, deserved or not. He declined to have his
photograph taken for this article because he said he is trying to start another life. He would not
reveal the name of his employer. In his plea for leniency, he asked Justice Atlas to note what
he has lost as the result of being "a convicted felon to the day I die."
Mr. Rossi still does not believe the case was brought against him.
"From the second I realized they were going to prosecute me to this second right now, it's
been beyond me," Mr. Rossi said. "It seems fictional."