BURLINGTON – A judge rejected as too lenient a proposed plea deal for a former Burlington police officer accused of making false statements about a drug arrest.
Chittenden County Superior Court Judge Alison Arms said Thursday she could not accept the deal for Christopher Lopez to plead no contest to the misdemeanor charge of making false statements to law enforcement, with a $1,000 fine as the penalty.
Lopez resigned from the Burlington Police Department in February after it emerged that video captured by his body camera during a traffic stop contradicted his statements in a sworn affidavit that he smelled marijuana coming from the car.
The incident forced the Chittenden County state’s attorney to drop 14 cases that relied on Lopez’s testimony.
“This is a case that really strikes at the heart of the administration of justice. The court makes hundreds of decisions a day that rely upon the truthfulness of police officers,” Arms said.
The plea deal offered by the state did not do enough to ensure “there is strength in the rule of law and that all of those charged with its administration follow the rules,” the judge added.
Assistant Attorney General Evan Meenan said the state’s primary goal was to get a conviction, something the no-contest plea would accomplish, in order to make it as difficult as possible for Lopez to ever work in law enforcement again.
“The primary deterrent effect of this sentence is that if you lie in an affidavit, you will not be a law enforcement officer in the state of Vermont, and you will have a permanent conviction, which makes it incredibly difficult to be a law enforcement officer anywhere else,” Meenan said.
A plea agreement was the most effective way to ensure that outcome, Meenan said, because Lopez has said he did not knowingly make a false statement, but rather that his affidavit contained a “drafting error.”
“If this case were to proceed to trial, it is likely the defendant would take the stand, provide his version of events, and the jury would be in the position of judging his credibility,” Meenan said. That would create an “evidentiary burden” for the state, one that the plea agreement would avoid, while still ensuring Lopez is convicted, he added.
Lopez’s attorney Lisa Shelkrot, with the firm Langrock Sperry & Wool, also defended the plea deal, saying her client had “significant defenses” that made his acquittal a possibility. By pleading no contest, Lopez would be shouldering responsibility for his actions, Shelkrot said, and was “in a sense being rewarded” for doing so.
The traffic stop that led to the criminal charges was 45 minutes long. At the seventh minute in the audio, Lopez can be heard saying he doesn’t smell anything. “At that time, seven minutes into the stop, my client maintains he did not smell anything. He maintains that he did smell something later,” Shelkrot said, previewing what would likely be Lopez’s defense.
Shelkrot said the no-contest plea was appropriate because the U.S. Supreme Court has affirmed that a person can accept the consequences of a crime without admitting to the facts of an allegation.
Lopez was already named in a lawsuit in which the man arrested in the traffic stop sued the city of Burlington, winning a settlement. If Lopez were to plead guilty in this case, it would make him an “appealing target” for more lawsuits, Shelkrot said.
The state’s decision to enter a plea agreement was not influenced by a polygraph test Lopez took, Meenan said. During the exam, Lopez answered questions affirming his version of events and showed no reactions “indicating deception was being attempted,” according to information Shelkrot filed in a sentencing motion supporting the plea agreement.
Meenan said polygraph results are not admissible at trial “for very valid legal reasons,” adding that in this case, the exam was not audio or video recorded, making it “difficult for the state to assess if it was conducted properly.”
The assistant attorney general stopped short of impugning the credibility of the exam conducted by Michael Vinton, a former chief polygraph examiner for the state police, which uses polygraph tests in its hiring process.
Lopez agreed to accept a deferred sentence of up to six months, with a year of probation, 80 hours of community service and the $1,000 fine. But Arms said she believed the sentence would not be sufficient to deter other officers from engaging in the same behavior as Lopez.
Arms said she understood Lopez’s interest in avoiding civil liability, as well as his right to argue his innocence at trial. But she said she had hoped he would be entering a guilty plea to make clear he was accepting responsibility for his actions — and to send a message to police around the state.
The judge said she would be willing to accept the no-contest plea if Lopez agreed to write a letter of apology to the two men who were in the car he stopped. One of those men, Michael Mullen, spent several months in jail until his public defender uncovered Lopez’s contradictory statements and the charges were dropped.
Arms also said Lopez’s community service would need to involve speaking to police about his actions “essentially destroying his career” and their impact on the administration of justice.
Initially, Arms asked that Lopez spend all 80 hours of his community service speaking to police about his experience. Shelkrot said she believed there would be too few opportunities for Lopez to speak to other officers in Vermont for him to be able to complete that form of community service in a reasonable span.
The primary reason Lopez was accepting the plea was to move on with his life, she said, adding, “His goal is not to still be doing community service a year from now.”
Arms said she would accept Lopez spending 10 hours speaking with police, with the other 70 hours on a work crew or doing other community service.
It then became clear Shelkrot and Lopez were under the impression the apology and community service would take the place of the $1,000 fine, but Arms said she would not accept the plea deal without both. She said that leaving out either would not send a strong enough message that both police and defendants can expect a judiciary that adheres to the rule of law.
After conferring with Lopez briefly, Shelkrot said he would not accept the plea agreement under Arms’ terms. The case is scheduled for a pretrial hearing Oct. 18. Because of Vermont’s rotating bench, it’s likely that hearing will be before a different judge.
Lopez and Shelkrot declined to comment as they left the courthouse. In brief remarks to reporters, Meenan reiterated that the state’s primary objective is a conviction that will prevent Lopez from working in law enforcement. Meenan would not comment on how the state plans to proceed.
The attorney general is handling the Lopez prosecution because the state’s attorney’s office has said it has a conflict of interest, suggesting that, were the case to go to trial, one of its prosecutors would likely be called as a witness.