Perjury investigation of Fort Smith police captain depends on ‘critical element’ decision

The investigation into alleged perjury during court testimony by a Fort Smith police captain now hinges on if the testimony was a “critical element” in the hearing, according to a letter from Sebastian County Prosecuting Attorney Dan Shue to Circuit Judge James Cox.

A more than 6-week long investigation into alleged perjury by FSPD Captain Jarrard Copeland wrapped up late last week when Sebastian County Sheriff Bill Hollenbeck turned over findings to Shue. Little Rock attorney Matt Campbell alleges that Copeland lied under oath on Aug. 29, 2014, as part of a hearing related to a whistleblower lawsuit by plaintiffs Don Paul Bales, Rick Entmeier and Wendall Sampson.

Campbell initially asked Shue to file charges against Copeland. In his request to Shue, Campbell said FSPD documents show that Copeland knew Bales, Entmeier and Sampson were suspects in the internal investigation. The fact is important because the status of a suspect in an investigation alters the process – essentially impacts the rights of the officer – by which an officer is treated. In the August hearing before Circuit Judge James Cox, Copeland testified under oath that Campbell’s clients were not suspects in the investigation. After the August 2014 hearing, Cox ruled against the request made by Campbell.

On Jan. 27, Judge Cox, Hollenbeck and Shue met to discuss the matter. Hollenbeck told Talk Business & Politics that Judge Cox asked him to investigate. He said the judge “asked them to review the transcripts and interview those involved” and return a report to the judge who would make a decision. Sebastian County Sheriff’s Department Investigator Philip Pevehouse conducted what was called a “fact-finding” effort.

Shue’s letter sent Tuesday (March 14) to Cox seeks the judge’s opinion on the importance of Copeland’s testimony.

“I have spoken with Investigator Philip Pevehouse and we are both of like mind that this investigation is, at this point, ongoing and incomplete until you apprise us as to your view regarding whether the statement was material,” Shue wrote.

Shue also noted: “It would be a vain and useless exercise to pursue criminal charges of Perjury where probable cause is lacking on the critical element of a false material statement. As a matter of policy, I am seeking your opinion with regard to the materiality of the alleged false statements made while you presided over the hearing, particularly where, as in this case, you not only made conclusions of law, but also made findings of fact (i.e., this was a bench trial/hearing and not a jury trial).”

Campbell told Talk Business & Politics he understands Shue’s point, but believes Judge Cox may have already addressed the question of importance.

“I think that’s a fair and necessary question for Mr. Shue to ask of the court. At the same time, I think Judge Cox has already implicitly addressed the question of materiality by asking the sheriff’s office to investigate. If Capt. Copeland’s statements were not material, there would have been no need for a perjury investigation in the first place,” Campbell said. “Besides, as noted in the affidavit that I submitted, this was literally the only thing that Judge Cox asked Capt. Copeland about during that hearing, and it was something that I addressed multiple times during cross examination. If it wasn’t material, I don’t think the judge would have asked Capt. Copeland about only that single issue.”

Campbell also provided a section of case law he believes makes Copeland’s testimony “material.” According to a 1985 case, Fleming v. Arkansas, for a statement to be material, “[i]t is only necessary that the false statement be capable of influencing the outcome of the proceedings.”

Link here for a PDF copy of Shue’s letter to Judge Cox.