Port: A North Dakota court decided to believe a cop's lie instead of clear video evidence

MINOT, N.D. — The proliferation of cameras — from smartphones wielded by the general public to dash cameras and body cams used by the cops themselves — has been a boon when it comes to accountability for law enforcement.

The cops haven't always liked it. They've resisted body cameras in the past. We often see evidence of cops harassing citizens who are recording them. But, in the aggregate, we're gaining more insight into how cops do their jobs out on the streets, and what we're seeing isn't always very pretty.

But sometimes, even when cameras provide an objective point of view, the cops still decide to lie.

One such incident recently made its way to the North Dakota Supreme Court .

State of North Dakota vs. Michael Anthony Boger has to do with a traffic stop that resulted in criminal DUI charges for the defendant. A Minot Police Department officer stopped Boger at 11:30 p.m. on a November evening in 2019 because he claimed the man's license plate was not properly illuminated.

From the court's opinion: "Prior to the traffic stop, the arresting officer was traveling eastbound on Burdick Expressway in his patrol vehicle when he was passed by Boger’s vehicle traveling westbound on the same road. As Boger’s vehicle passed, the officer testified he looked in his driver’s side rear-view mirror and noticed Boger’s rear license plate area was not illuminated. The officer turned around to follow Boger’s vehicle. Once behind Boger’s vehicle, the officer testified he observed the rear license plate was still not illuminated. After approximately five to seven seconds of following Boger’s vehicle, the officer initiated a traffic stop. The officer testified the rear license plate was not illuminated when he first observed Boger’s vehicle, was not illuminated when he was following Boger’s vehicle, and the license plate illumination light was not functioning during the traffic stop."

That's pretty straightforward, except that the body camera worn by the officer showed something completely different. These stills captured from that video, and included in the court's decision, show that Boger's license plate lights are functioning properly.

"The video recorded by the officer’s body-worn camera stands in direct conflict with this testimony," the Supreme Court opinion states. "As the officer approaches the rear of Boger’s vehicle, the video clearly depicts the rear bumper and license plate for five seconds beginning at the indicated time of T05:38:35Z.1 There is a single white light immediately to the right of the license plate that is fully illuminated. The rear of the vehicle, including the license plate and the light, appear clean."

It's not great that a police officer lied about the reason for a traffic stop.

And it is a lie. The officer had to be aware of this video, yet he stuck by his testimony anyway, even under cross-examination. He's a transcript of his questioning by Boger's defense attorney:

It's worse.

The district court where this issue first came up, where the video evidence contrary to the cop's claims was presented, decided to side with the cop's testimony instead of what can clearly be seen in the video. "Based upon the testimony of [the officer], the alleged illumination did not render the rear license plate clearly legible to [the officer] as the vehicles passed each other," Judge Doug Mattson found despite the video evidence presented in his court.

The Supreme Court, in a 3-2 decision, wasn't having it. "The officer’s testimony is inconsistent with the body camera video. The still images from the video clearly show the officer’s testimony is contrary to the video evidence," the majority opinion, written by Chief Justice Jon Jensen , finds, reversing the lower court and allowing Boger to withdraw his conditional guilty plea.

That's the right outcome, but why did the case have to be litigated all the way to the state Supreme Court to get it?

And why was the court's decision not unanimous?

Two justices dissented — Lisa McEvers and Gerald VandeWalle — siding with the cop's testimony over the clear video evidence.

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It's a testament to how biased our criminal justice system is toward the cops, and the prosecutors, when even clear video evidence isn't enough to overcome a cop's testimony.
I asked Minot Police Chief John Klug if there would be any training or discipline for the officer who made the stop in this case. "I have our Professional Standards lieutenant looking into this case so I can provide a response," is what Klug told me initially.

As a follow-up, Klug indicated that he wasn't aware of this situation. "The officer was Stuart Miles, who is currently on military leave from the department. We had not heard or known anything about the case or any discrepancies, so to you [sic] question about training or discipline, the answer is no," he said. "Now that this is on our radar and we will address it further when he returns to work."

I can add a personal anecdote that, in hindsight, is somewhat chilling. As most of you know, I live in Minot. Last summer, after watching a movie with my family, I was driving across town after midnight. An officer pulled me over and told me I had a tail light out. I was issued a warning, but the officer was clearly trying to see if I'd been drinking (I haven't had a drink of alcohol in more than five years).

The next day, failing to remember which light the officer said was out and wanting to get it fixed, I asked someone to stand behind my vehicle and check whether my lights were out.

None of them were. They were all working properly. I checked several more times in subsequent days and couldn't find a problem.

I chalked it up to my truck being old — I've had it for 16 years, after all — and perhaps I had a loose wire.

In light of the Boger case, I wonder if the officer who pulled me over really saw a tail light that was out.

I shouldn't have to wonder.

I attempted to get the video from my traffic stop, but it was destroyed after 90 days since it didn't result in any citations.

For the record, I still haven't fixed my tail light because I still can't find any evidence that it's broken.

This article has been updated to include additional information from Minot Police Chief John Klug. To comment on this article, visit www.sayanythingblog.com

Rob Port, founder of SayAnythingBlog.com, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at rport@forumcomm.com .