Judge accuses Durham cop of making false statements in a rape investigation

Durham police are investigating a fatal crash on North Duke Street in Durham.
Durham police are investigating a fatal crash on North Duke Street in Durham. News & Observer file photo

Last year a Durham police officer used a search warrant to accuse a fellow law enforcement officer of rape and kidnapping. The accused officer was later suspended and lost pay.

But that search warrant contained intentionally false statements, a judge has ruled — a ruling that might cast doubt on the officer's testimony in other sexual assault cases in Durham. And the judge was critical not only of the police officer who wrote the false warrant, but also of some of the top leaders at the North Carolina State Bureau of Investigation who launched the investigation into the accused officer.

The judge's ruling was a blow to the leadership of the SBI, which has appealed the ruling. The judge found, among other things, that SBI leaders might have lied under oath, ignored internal policies and violated the U.S. Constitution.

At question is a fight between an agent for the state's Alcohol Law Enforcement agency and several high-ranking members of the SBI, which has partial control over the ALE.

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After he was accused of rape in January 2017, longtime Durham-based ALE agent Donald Ray Richardson was investigated first in Durham — where prosecutors never charged him — and later in an internal investigation at work. He was suspended without pay and ordered to never again work in Durham. But Richardson appealed his punishment, saying his rights were violated. Earlier this year, he won.

Richardson's attorney Mikael Gross, a former deputy director of the N.C. Department of Public Safety, said the SBI went against some of its core duties in its pursuit of Richardson.

"The SBI's job is to exonerate the innocent and capture the guilty," Gross said. "But in my client's case it was clear that he had done nothing wrong."

What went wrong

Richardson was originally investigated over allegations that he raped a woman while on duty. He was never charged, and now the Durham Police Department officer who wrote the search warrant is himself under investigation.

The Durham Police Department declined to comment other than to confirm its investigation into Jesus Sandoval, a veteran sex crimes investigator, is ongoing. Sandoval was still on the job and had not been suspended.

After the rape allegations against Richardson went nowhere in court, the SBI continued its investigation and eventually suspended him for different reasons related to the same incident — conducting an improper stop, failing to document seized property and refusing to comply with a search warrant.

Several other agents who were working with Richardson that night were also disciplined, but it appears Richardson is the only one who appealed. And in March, an administrative law judge at the state's Office of Administrative Hearings agreed with Richardson that he was mistreated and should not have been suspended.

The judge, Donald Overby, said he found "ample credible evidence" that, among other violations, SBI leaders decided to punish Richardson before the investigation was complete — and "even before he had a chance to defend himself."

Richardson won about $1,800 in back pay for the time he was suspended, and the state was ordered to pay his lawyer's fees, among other conditions.

Attorney General Josh Stein's office has appealed the case on behalf of the SBI. So while it's unclear what the court system's final opinion on this case will be, Overby's ruling reached a number of troubling findings, including:

A key part of the investigation into Richardson was a search warrant based on false information, and that Sandoval "would have known it was not truthful."

The former deputy director of the SBI, Kanawha Perry, "knew or should have known" that the search warrant contained false information. And although Perry had multiple opportunities to correct the warrant, he did not. Perry is now a top official at the N.C. Department of Public Safety, where he is the deputy director of special investigations.

Internal investigators for the SBI possibly violated Richardson's constitutional rights, specifically those guaranteed by the Fourth and Fifth Amendments, regarding unlawful searches and seizures as well as due process violations.

Overby wrote that in addition to "possible" Fifth Amendment violations during the investigation, there was a "substantial likelihood" the investigation violated Richardson's Fourth Amendment rights as well. Those violations were related to the seizure of some of Richardson's personal items, including his cellphone. Richardson called that unconstitutional at the time and initially fought against it, until Perry informed Richardson's boss "that Durham Police investigators threatened to use force to take the phone," according to Overby's ruling.

Overby also criticized Perry for ignoring multiple opportunities to stop Sandoval from putting false information into the warrant.

"What is as troubling about what transpired in this instance is the fact that the Assistant Director of the SBI had at least two opportunities to intercede to stop the service of what he knew or should have known was an invalid search warrant," Overby wrote.

He added: "With such serious charges, it would seem the investigators would want to get it right."

Overby also took the SBI to task for violating its own policies during the investigation and then attempting to downplay those violations in court.

"It would make zero sense that an employee could be terminated for not following the rules and procedures, but the agency gets a bye for not abiding by the rules and procedures," Overby wrote. "We would have a totally nonsensical process."

One of the most glaring examples of the policy violations was that multiple SBI officials who carried out the investigation, including Perry, testified that they never read the ALE's rules and policies, even though they were investigating an ALE agent.

The investigation was one of the first under the leadership of new SBI Director Robert Schurmeier, who was appointed by former Gov. Pat McCrory in July 2016. In a brief written statement, SBI spokeswoman Patty McQuillan said Schurmeier asked for the state to appeal Overby's ruling because he believes it is incorrect.

"The SBI director does not agree with the judge’s findings," McQuillan said. The case is now in front of the N.C. Court of Appeals.

Gross said that by appealing, the SBI is now arguing that Richardson should be suspended even though a judge has ruled that there was no reason to suspend him, and despite the fact that Richardson had a clean record up until this situation.

"I have a guy here who has 20 years of experience, has been an outstanding employee, had nothing on his record until this in the last year and a half," Gross said.

Gross and Richardson have painted the SBI's investigation as a witch hunt into the longtime Durham investigator, which they say began after Schurmeier became angry over Richardson's handling of a strange case involving extortion and threats against the Bank of America CEO, including threats invoking ISIS.

Richardson has said in court filings that Schurmeier thought the ALE handled the case poorly and shouldn't have taken it in the first place, and that Schurmeier "carried a copy of the investigative file around with him and made a point to discuss his dissatisfaction with the investigation with members of the General Assembly."

The case also involves the kind of power struggles and infighting that sometimes embroil state agencies.

Overby wrote that he heard inconsistent testimony from employees of the ALE and SBI, possibly rising to the level of perjury.

"The testimony from the ALE agents and the SBI agents are diametrically opposed, all but calling each other liars," Overby wrote. "There is no middle ground between the two. One side is not telling the truth."

However, he did not attempt to get to the bottom of that question. He devoted more attention to the botched investigation and the serious allegations of rape and kidnapping that Richardson initially faced.

'Simply not true'

In January 2017 Richardson and three other ALE agents approached a car at a Durham gas station, noting that its engine was running but the driver appeared unconscious.

A gas station video of the incident shows the group of them approaching the car, at night, shining flashlights. The agents later said they found a straw and measuring scales in the car, and the woman at the wheel told them she was on drugs. They took the straw and scale, suspecting they were drug paraphernalia, but couldn't find evidence of drugs in a field test. They left without charging her but took her straw and scale.

The woman later accused Richardson of raping her on the hood of her car while two of the other three agents watched.

The woman's accusation was seconded by Sandoval, the Durham detective, who wrote in a search warrant targeted at Richardson that the video backed up the woman's story.

The judge who signed off on that warrant did not watch the video. But Overby, who is a former district court judge and criminal defense attorney, did.

Afterward he lit into Sandoval.

"There is no evidence from anyone, not even hearsay, that the video in any manner confirms the story told by the complainant of being forcefully removed, searched and raped," Overby wrote in his ruling.

"If anything, the video completely discounts the victim’s story that she was placed across the hood of her car and raped," the judge continued. "Apparently, Sandoval made no attempt to make a value judgment of what was to be seen in the video. However, what he told Judge (Carl) Fox in his sworn affidavit is simply not true, and Sandoval would have known it was not truthful."

Overby didn't make any recommendations for how to deal with Sandoval. But he did note "the existence of penalties for the person supplying the perjured testimony, including criminal prosecution, administrative discipline, contempt of court and civil actions."

The Durham Police Department declined to let Sandoval be interviewed, or to provide a statement from Chief C.J. Davis regarding the allegations. Sandoval also did not respond to a letter from The News & Observer.

Kammie Michael, a police spokeswoman, confirmed that an internal investigation has been looking into the allegations, and that Sandoval continues to work for the department while that investigation is ongoing.

An investigator in Durham's sex crimes unit, Sandoval makes a $66,000 annual salary and has worked for the department since 1999, except for a 14-month break more than a decade ago. In 2016 he received an award from the Durham Civitan Club for his service.

He has been suspended once, in 2011, although it's unclear why. Michael said the details are not a public record.

In 2007 Sandoval killed a man while on duty; The News & Observer reported in 2008 that the district attorney's office cleared him of wrongdoing in the shooting. He fired at a car driving toward him and killed the driver, according to the 2008 article. (Moments later, the car caused a wreck that sent two other people to the hospital, including Christopher "Play" Martin of the '90s hip-hop group Kid 'N Play, who at the time was a professor at N.C. Central University.)

Durham County District Attorney Roger Echols said Sandoval is a potential witness in numerous other ongoing criminal cases, and that his office is looking into this allegation regarding his credibility. Echols said the outcome of the state's appeal "will help determine what further investigation there is."

Doran: 919-836-2858; Twitter: @will_doran