ST. LOUIS - Douglas Hervey Jr. won a reversal of a felony conviction last year after presenting a police radio recording that apparently contradicted testimony of an officer who claimed to see him run from a stolen car.
Now he wants two officers to pay damages, claiming in a civil suit filed in U.S. District Court here that they deliberately lied under oath, leaving him behind bars for more than three years.
His lawyers and the suit, filed Thursday, say that although police testified that they never lost sight the car during a pursuit on April 4, 2008, the radio recording suggests that they did, and that they found the vehicle only after it was abandoned.
"It appears to me that the officers lied, knowingly and intentionally, and my client spent 40 months in jail as a result," said Bevis Schock, one of Hervey’s lawyers.
The dispatch tape and the trial transcript, supplied by the lawyers, seem to back them up.
At almost five minutes into the pursuit of the stolen 2002 Dodge Intrepid, a male officer says, "We’re going to lose the eye on it."
In the next 75 seconds, as officers close in on the last known location, they say that first the passenger door, then the driver’s door are open.
At roughly the six-minute mark, someone reports that the car looks abandoned, and an officer confirms that at 7:40 on the tape, saying that the doors are open and the engine is running.
No one mentions spotting the driver run to a nearby building. Hervey was arrested at his home nearby, in the 3100 block of Rolla Place.
The suit names Officers Sheresa Absher and Drew Werninger as defendants.
Police department spokeswoman Schron Jackson said via email that, "The Department was previously made aware of these allegations, and after reviewing the relevant information, found no wrongdoing on the part of any police personnel. The Department intends to vigorously defend itself against the allegations in this lawsuit."
She wrote that Absher is assigned to the Second District and Werninger to the anti-crime task force.
Hervey’s first trial ended with a hung jury, but he was convicted at the second.
At trial in June 2009, Werninger said he saw the driver get out and run into a nearby back yard, according to a transcript. Absher said she saw Hervey clearly as the two cars passed at one point during the chase. The recording does not seem to contradict her about that.
Another officer, Deidra Henderson, who is not named in the suit, testified that Werninger said in a radio broadcast that he had seen the driver running west through a gangway. That is not heard on the recording.
The suit insists that Hervey was in his house the entire time.
Hervey was charged with stealing the car and later indicted by a grand jury for tampering. He was released on bail, but since he was already on probation, he remained behind bars.
The recording initially was discovered by lawyer David M. Mangian, representing another man arrested at the house that day. Mangian declined to comment, other than to confirm that he obtained a copy of the tape and testified at Hervey’s appeal hearing.
Hervey filed his own appeal, and later had a lawyer appointed to represent him.
Scott Thompson, of the public defender’s office, said prosecutors initially fought Hervey’s appeal "tooth and nail," even after listening to the recording, but that "cooler heads" eventually prevailed.
The appeal file shows that prosecutors filed a motion to set aside the case after a hearing in which the tape was played.
Circuit Judge Jack Garvey, who presided over the trial, then dismissed the charges.
Garvey declined to comment on the case. Hervey’s criminal file is closed under state law because the charge has been dismissed.
Circuit Attorney Jennifer Joyce, in a prepared statement, said new information provided during the appeal "led us to ask the Court to dismiss the case, and thus, the conviction of Mr. Hervey. Due to the fact that this case is now a closed legal record and currently in litigation, we are unable to discuss specific details."
Asked if her office had plans to re-charge Hervey, or consider perjury charges against the officers, Joyce responded, "It would be inappropriate for us to discuss plans on whether anyone will be charged related to this matter, except to say that if charges are appropriate under the law and there is evidence available, they will be filed."
Schock, Hervey’s lawyer, said, "The public needs to be aware that this sort of thing is going on." He called it "an indication of a completely sick department."
Schock acknowledged that Hervey is "a person who’s been in trouble before. But it doesn’t mean that they can just throw guys who have been in trouble before in jail."